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CITATIONS 


TO  THE 


CODE  OF  VIRGINIA. 


BY 
ABRAM  C.  EBY, 

OF    THE    RICHMOND    BAR. 


Richmond,  Vir(;inia, 

J.  W.  Randolph  &  Company. 

1895. 


COPTEIGHTBD 
BY 

ABRAM  C.  EBY. 
1895. 


Printkd  vt 

■Whittbt  *  Shbppkrson, 

Richmond,  Va. 


PREFACE. 


The  preparation  of  these  "Citations"  for  publication  was  un- 
dertaken because  of  the  obvious  need  of  a  work  of  this  charac- 
ter, as  a  ready  means  of  determining  the  construction  of  Virginia 
Statute  Law.  Chronological  order  has  been  observed  through- 
out the  entire  work,  save  where  interfered  with  by  the  arrange- 
ment of  references  in  the  margin  of  the  Code,  which  are  strictly 
followed,  and  always  noted,  though  not  given  in  full,  even  when 
they  are  erroneous,  as  is  sometimes  the  case. 

Mere  cumulative  authorities  have  been  avoided  as  far  as 
practicable,  as  the  value  of  a  work  of  this  kind  will  depend  upon 
its  concise  statement  of  an  authoritative  decision  on  each  point 
which  has  been  questioned,  and  not  upon  a  mere  inchoate  mass 
of  precedents ;  for  its  purpose  is  to  define  the  meaning  andjlkts^^"'^^ 
trate  the  principles  of  our  statute  law,  as  determined  by  the 
Supreme  Court  of  the  United  States,  the  Supreme  Court  of 
Appeals,  and  the  now  abolished  General  Court  of  Virginia. 

The  references  having  all  been  verified,  the  "Citations"  are 
now  given  to  the  tender  mercies  of  a  critical  profession,  with  the 
hope  that  they  will  prove  a  reliable  method  of  saving  much  valu- 
able time. 

Richmond,  Va.,  Februat'y,  1895. 


686177 


CITATIONS 


The  Code  of  Virginia 


CONSTITUTION. 

Article  1,  Section  21. 

In  Bujfin  vs.  Gorainonwealth,  21  Grat.,  790,  decided  Novem- 
ber 11,  1871,  it  was  held:  The  bill  of  rights,  though  made  a 
part  of  the  Constitution,  has  the  same  force  and  authority  as 
before,  and  no  more  than  it  always  had.  And  the  principles 
which  it  declares  have  reference  to  freemen  and  not  to  a  con- 
victed felon ;  that  a  convicted  felon  has  only  such  rights  as  the 
statutes  may  give  him. 

(In  this  case  the  prisoner,  a  convict,  had  killed  a  guard  not 
employed  by  tlie  State,  but  by  a  contractor  to  whom  the  said 
convict  was  hired  by  the  State;  in  Bath  county,  the  question 
was.  Could  he  be  legally  tried  in  the  Richmond  Circuit  Court  in 
accordance  with  the  statute  and  contrary  to  the  bill  of  rights?) 

Article  4,  Section  6. 

In  the  case  of  Lee  {Sergeant)  vs.  Murphey,  22  Grat.,  789,  de- 
cided December  4, 1872,  it  was  held:  The  Governor  of  Virginia 
has  authority  under  the  Constitution  to  grant  a  conditional 
pardon  to  a  prisoner  convicted  of  a  felony. 

The  condition  annexed  to  a  pardon  must  not  be  impossible, 
immoral,  or  illegal,  but  it  may,  with  the  consent  of  the  prisoner, 
be  any  punishment  recognized  by  statute  or  by  the  common  law 
as  enforced  in  this  State.  Though  the  warrant  of  the  governor 
speaks  as  commuting  the  punishment,  yet,  as  it  substitutes  a 
less  for  a  greater  punishment,  and  is  intended  to  be  done  and  is 
done  with  the  consent  of  the  prisoner,  it  will  be  considered  a 
pardon,  and  not  a  commutation  of  the  punishment. 

(This  case  distinguishes  the  case  of  Commonwealth  vs.  Fowler^ 
4  Call,  35,  in  which  the  punishment  substituted  in  the  pardon  was 
illegal.  And  Ball  vs.  Commoiiwealth,  8  Leigh,  726,  was  dis- 
regarded on  the  ground  that  it  was  a  mere  obiter  dicttim.) 

In   Wilkinson  {S/ceriff)  vs.  Allen,  23  Grat.,  10,  decided  Jan- 


2  Citations  to  the  Code  of  Virginia. 

uary  22,  1873,  it  was  held :  The  governor  has  no  authority  to 
remit  a  fine. 

In  Blair  vs.  Commomoealth,  25  Grat.,  850,  decided  March  12, 
1874,  it  was  held :  Under  the  Constitution  of  Virginia,  the  gov- 
ernor has  authority  to  pardon  a  person  convicted  of  a  felony  by 
the  verdict  of  the  jury  before  the  sentence  is  passed  upon  him 
by  the  court. 

In  the  case  of  Edwards  vs.  Commonwealth,  78  Va.,  39,  decided 
November  15, 1883,  it  was  held :  The  governor's  pardon  relieves 
the  offender  not  only  of  the  punishment  annexed  to  the  offence 
whereof  he  was  convicted,  but  of  all  penalties  and  consequences, 
including  the  additional  punishment,  imposible  not  by  reason 
of  the  sentence  for  the  second  offence  alone,  but  in  consequence 
of  that  sentence,  and  the  sentence  in  the  former  case,  except, 
however,  political  disabilities  growing  out  of  his  conviction  and 
sentence. 

Article  4,  Section  8. 
In  the  case  of  Wolfet  als.  vs.  McCall,  Clerk,  etc.,  76  Va.,  8'76, 
decided  July,  1882,  it  was  held:  Where  the  legislature  has 
passed  a  bill  and  presented  it  to  the  governor,  the  legislature 
cannot  recall  it.  The  governor  has  no  power  to  return  a  bill 
except  with  his  veto  and  objections.  In  this  case  it  was  returned, 
and  not  having  been  vetoed  it  became  a  law. 

Article  5,  Section  14. 

In  the  case  of  Perry  vs.  Commonwealth,  3  Grat.,  632,  decided 
December,  1846,  it  was  held :  The  constitutional  provision  for- 
bidding ex  post  facto  laws  relates  to  crimes  and  punishments, 
and  not  to  criminal  proceedings. 

No  person  is  incapacitated  from  being  a  witness  on  account 
of  his  religious  belief. 

In  Flecker  vs.  Bhodes,  30  Grat.,  795,  decided  October  3, 1878, 
it  was  held :  The  General  Assembly  has  the  power  to  authorize 
an  individual  to  build  a  toll-bridge  over  a  river. 

Article  5,  Section  15. 
In  the  case  of  Anderson  vs.  Commonwealth,  18  Grat.,  295, 
decided  February  20,  1868,  it  was  held:  A  charter  reserving  to 
the  General  Assembly  the  power  to  modify  or  repeal  the  charter, 
the  modification  was  effectually  done  by  the  act  for  the  assess- 
ment of  taxes,  and  is  not  a  violation  of  this  section  of  the  Con- 
stitution. 

oiJ""  *^^.^^^f  of  Crawford  vs.  Ilalsted  <&  Putnam,  20  Grat., 
211  decided  January  9,  1871,  the  act  of  February  7,  1867 
(Acts,  P- 615),  was  held  to  conform  with  this  section,  though  the 
judges  did  not  agree  in  defining  exactly  what  was  the  meaning 
of  this  section,  some  holding  it  to  be  merely  directory,  but  care- 


Citations  to  the  Code  of  Virginia.  3 

fully  avoiding  a  decision  which  would  affect  more  than  the  case 
at  bar. 

In  the  case  of  Prices  executor  et  als.  vs.  HarrisorCs  executor 
et  als.  31  Grat.,  121,  decided  November  28,  1878,  it  was  held : 
No  inference  of  an  intended  retroactive  operation  is  to  be  drawn 
from  the  mode  of  amendment,  that  is,  by  re-enacting  the  exist- 
ing statutes  as  amended  so  as  to  read,  etc.:  This  mode  of  amend- 
ment was  adopted  pursuant  to  requirements  of  the  Constitution 
of  the  State. 

In  the  case  of  Board  of  Supervisors  vs.  McGruder,  84  Va., 
828,  decided  May  3,  1888,  it  was  held :  This  section  ordains 
that  no  law  shall  embrace  more  than  one  subject,  which  shall 
be  expressed  in  its  title.  Act  of  November  27,  1884,  entitled, 
"  An  act  to  allow  further  time  for  the  treasurer  of  Henrico  county 
to  make  returns  of  delinquent  taxes,"  provides  that  the  "  late 
treasurer  of  Henrico  county  be  allowed  until  the  first  day  of 
February,  1885,  to  make  his  supplementary  returns  for  the  years 
1879,  1881,  1882,  and  1883,"  and  is  repugnant  to  said  section  of 
the  Constitution,  in  that  the  title  thereof  is  not  only  misleading, 
but  embraces  an  object  wholly  variant  from  the  object  expressed 
in  the  body  of  the  act. 

In  the  case  of  Fidelity  Insurance,  Trust  and  Safe  Deposit 
Company  et  als.  vs.  Shenandoah  Yalley  JR.  M.  Co.  et  als.,  86 
Va.,  1,  decided  April  11,  1889,  it  was  held :  The  act  of  March 
21,  amended  April  21,  1879,  entitled,  "An  act  to  secure  the 
payment  of  wages  and  salaries  of  certain  employees  of  railroad 
fvnd  other  transportation  companies,"  providing  that  employees 
and  persons  furnishing  to  such  companies  supplies,  cars  and 
engines,  is,  as  to  the  cars  and  engines,  void,  being  repugnant  to 
Section  15,  Article  5,  Virginia  Constitution. 

In  the  case  of  Powells  vs.  Supervisors  of  Brunswick  County, 
88  Va.,  707,  decided  January  28,  1892,  it  was  held  :  The  intent 
of  Article  5,  Section  15,  Constitution  of  Virginia,  was  to  prevent 
in  one  act  the  union  of  objects  having  no  connection,  and  is 
effectual  where  an  act  has  but  one  general  aim  fairly  indicated 
in  its  title,  as  "to  incorporate  a  railroad  company,"  and  such  act 
may  embrace  the  necessary  details,  such  as  authorizing  counties 
to  aid  by  their  subscriptions  and  the  like.  An  act  approved 
April  21,  1882,  entitled,  "An  act  to  incorporate  the  A.  &  D. 
Railroad  Company,"  is  not  repugnant  to  said  section. 

In  the  case  of  Lascallett  vs.  Coimnonioealth,  89  Va.,  878,  de- 
cided April  20,  1893,  this  section  provides  that  no  law  shall  em- 
brace more  than  one  object,  which  shall  be  expressed  in  its 
title ;  but  where  the  act  has  but  one  general  object,  and  that  is 
the  suppression  of  certain  kinds  of  betting  or  gambling,  and 
makes  it  an  offence  (1),  to  bet  in  any  of  the  prohibited  modes, 
and  (2),  to  keep  any  house  for  the  purpose  of  betting  therein. 


4  Citations  to  the  Code  of  Virginia, 

Held :  The  act  does  not  violate  said  section,  as  the  latter  provi- 
sion is  merely  one  of  the  measures  adopted  for  the  accomplish- 
ment of  the  general  object  expressed  in  the  title. 

Article  5,  Section  17. 
In  the  case  of  Trustees  vs.  Guthrie  et  als.,  86  Va.,  125,  de- 
cided June  13,  1889,  it  was  held:  The  creation  of  a  corporation 
for  the  purpose  of  carrying  on  Foreign  Missions  is  not  the  in- 
corporation of  a  church  or  religious  denomination,  which  is  for- 
bidden, but  which  provides  that  the  legislature  may  secure  the 
title  to  church  property. 

Article  5,  Section  22. 

In  the  case  of  Meredith,  ex  parte,  33  Grat.,  119,  decided 
April  1,  1880,  it  was  held :  A  judge  of  a  county  court,  who  ha& 
been  elected  to  fill  a  vacancy  occasioned  by  the  death  of  a  for- 
mer judge,  is  elected  for  the  full  term  of  six  years,  and  not  for 
the  unexpired  term  of  the  former  judge  ;  and  this  is  equally  true 
of  judges  of  the  Court  of  Appeals  and  circuit  courts. 

In  the  case  of  Burks  vs.  Hinton,  11  Ya.,  1,  decided  January 
15,  1883,  it  was  held:  The  joint  resolution  of  December  28,. 
1872  (Act  1872-73,  p.  1),  providing  that  all  elections  by  the 
General  Assembly  to  fill  vacancies  in  the  office  of  judge  shall  be 
for  the  unexpired  term  of  his  predecessor  is  constitutional.  The 
decision  of  this,  court  in  re  Meredith,  33  Grat.,  119,  declaring 
the  joint  resolution  unconstitutional,  is  sustained  neither  by  con- 
temporaneous or  legislative  construction,  nor  by  the  reason  of 
the  judge  who  delivered  the  opinion,  and  is  erroneous. 

In  the  case  of  Vaughan  vs.  Johnson  {Sergeant)^  11  Ya.,  300, 
decided  March  22,  1883,  it  was  held  :  The  General  Assembly  is 
authorized  by  the  Constitution  to  declare  the  cases  in  which 
any  office  shall  be  deemed  vacant  and  the  mode  of  filling  vacan- 
cies in  cases  not  therein  especially  provided  for.  The  Constitu- 
tion does  not  declare  the  causes  for  which  the  office  of  mayor 
shall  be  declared  vacant,  nor  the  mode  of  filling  the  vacancy,  nor 
his  term  of  office. 

Article  6,  Section  2. 

See  Post,  Section  3455. 

In  the  case  of  Barman  vs.  City  of  Lynchburg,  33  Grat.,  37, 
decided  March  11, 1880,  it  was  held:  The  term  "matter  in  con- 
troversy," as  used  in  reference  to  the  jurisdiction  of  the  court  of 
appeals,  in  Article  6,  Section  2,  of  the  Virginia  Constitution, 
means  the  subject  of  litigation,  the  matter  for  which  suit  is 
brought  and  upon  which  issue  is  joined.  The  Appellate  Court 
must  show  the  right  of  the  court  to  entertain  jurisdiction. 

In  the  case  of  Fink  Brothers  (&  Co.  vs.  Denney  et  als.,  75  Va.,. 


Citations  to  the  Code  of  Virginia.  5 

663,  decided  September  term  1881,  it  was  held :  A  suit  to  set  aside 
several  deeds  on  the  ground  of  alleged  fraud,  and  to  subject  the 
lands  thereby  conveyed  to  the  debt  of  the  complainants,  is  not 
in  the  category  of  controversies  concerning  the  title  or  bound- 
aries of  land  within  the  meaning  of  the  Constitution  of  the  State. 
In  such  a  case  it  is  the  debt  which  is  the  matter  in  controversy, 
and  as  a  general  rule  it  is  the  amount  claimed  by  the  complain- 
ant in  the  court  below  which  determines  the  jurisdiction  of  the 
court  where  he  is  appellant. 

In  the  case  of  Batchellder  &  Collins  vs.  Richardson  &  Co., 
75  Va.,  835,  decided  November  term  1881,  it  was  held :  Where 
on  a  money  demand  the  difference  between  the  amount  decreed 
to  the  appellant  in  the  court  below  and  the  amount  of  the  claim 
asserted  by  him  in  that  court  is  not  sufficient  to  give  this  court 
jurisdiction,  his  appeal  will  be  dismissed,  and  if  the  actual 
amount  in  dispute  does  not  otherwise  appear,  the  court  will  look 
to  the  whole  record  for  the  purpose  of  determining  the  juris- 
diction. 

In  the  case  of  the  Southern  Fertilizing  Co.  vs.  Nelson,  6  Va. 
Law  Journal,  162,  decided  January,  1882,  it  was  held :  The 
onus  of  showing  that  the  appellate  court  has  jurisdiction  of  a 
case  is  always  on  the  appellant  or  plaintiff  in  error.  The  pro- 
perty levied  on  does  not  constitute  the  matter  in  controversy  so 
as  to  give  the  court  jurisdiction  of  the  case. 

In  the  case  of  Biichier  vs.  Metz  et  als.,  11  Va.,  107,  decided 
February  1,  1883,  it  was  held :  Where  A  secures  a  judgment 
against  J3  for  an  amount  greater  than  five  hundred  dollars,  and 
B  conveys  his  only  property,  worth  less  than  five  hundred  dol- 
lars, to  a  third  person,  upon  which  A  brings  suit  to  subject  the 
said  property  to  the  payment  of  his  judgment  against  B,  that 
the  suit  brings  for  the  value  of  the  property,  that  value  deter- 
mines the  jurisdiction. 

In  the  case  of  Updihes's  administrator  et  als.  vs.  Lane,  78  Va., 
132,  decided  December  6,  1883,  it  was  held :  Where  for  debt  of 
decedent  there  is  no  decree  in  solido  against  his  personal  repre- 
sentative, but  severally  against  each  distributee  for  his  propor- 
tion of  the  debt,  which  exceeds  five  hundred  dollars,  substanti- 
ally it  is  a  decree  against  the  decedent's  estate,  and  as  it  exceeds 
in  the  aggregate  the  minimum  jurisdictional  sum,  an  appeal  lies 
from  the  decree  in  behalf  of  the  distributees.  This  point  has, 
however,  been  ruled  upon  by  the  United  States  Supreme 
Court. 

In  Hendersons  executor  vs.  Wadsworth,  115  U.  S.,  264,  de- 
cided November  2,  1885,  it  was  held:  Where  suit  is  brought 
against  heirs  to  enforce  their  liability  for  the  payment  of  a  note 
on  which  their  ancestor  was  bound,  and  they  plead  neither  coun- 
ter claim  nor  set  off,  and  ask  no  affirmative  relief,  and  separate 


6  Citations  to  the  Code  op  Virginia. 

judgments  are  rendered  against  each  for  his  proportionate  share, 
the  court  has  jurisdiction  in  error  only  over  those  judgments 
which  exceed  five  thousand  dollars. 

In  the  case  of  Peters  &  Reed  vs.  Mc  Williams  et  als.,  78  Va., 
567,  decided  February  7,  1884,  it  was  held :  Where  the  amount 
in  controversy  exceeds  the  minimum  jurisdictional  sum  this 
court  hath  jurisdiction,  though  the  judgment  complained  of  be 
not  in  form  in  solido  for  that  amount,  but  be  divided  into  lesser 
sums,  payable  to  the  persons  respectively  entitled  thereto ;  in 
form,  the  judgment  is  several  in  substance ;  it  is  in  solido. 

In  the  case  of  Cox  vs.  Carr  et  als.,  79  Va.,  28,  decided  April 
3,  1884,  it  was  held:  Where  jurisdiction  depends  upon  the 
amount  in  controversy,  if  plaintiff,  in  his  declaration  or  bill, 
claims  money  or  property  of  greater  value  than  five  hundred 
dollars,  he  is  entitled  to  his  appeal  or  writ  of  en"or,  though  the 
judgment  be  for  less ;  but  not  so  the  defendant  if  the  judgment 
be  for  less. 

In  the  case  of  McCrowell  vs.  Burson,  79  Va.,  290,  decided 
August  7,  1884,  it  was  held :  To  give  this  court  jurisdiction, 
save  in  certain  cases,  the  judgment  must  amount  to  five  hun- 
dred dollars,  principal  and  interest,  at  its  date,  except  when 
plaintiff's  demand  exceed  the  sum  and  he  applies  for  the  ap- 
peal. This  is  in  affirmation  of  Gage  vs.  Crocket,  27  Grat.,  734, 
and  Tehhs  vs.  Lee,  76  Va.,  744. 

In  the  case  of  Smith  et  ux  vs.  Rosenheim,  79  Va.,  540,  decided 
October  7,  1884,  it  was  held :  The  test  of  jurisdiction  in  this 
court  to  entertain  an  appeal  from  a  decree  of  the  court  below, 
enforcing  on  land  the  hen  of  a  judgment  is  the  amount  or  value 
of  the  judgment.  If  such  amount  or  value  fall  below  five  hun- 
dred dollars,  this  court  has  no  jurisdiction  to  review  such  decree. 

In  the  case  of  Mcintosh  {Treasurer)  vs.  Braden  ct  als.,  80  Va., 
217,  decided  February  5,  1885,  it  was  held :  The  act  of  March 
12,  1884,  is  constitutional  so  far  as  it  confers  upon  this  court 
jurisdiction  in  all  cases  of  coupons  arising  under  act  of  January 
14,  1882,  without  regard  to  the  amount  in  controversy  being  in 
conflict  with  Article  6  of  the  State  Constitution,  fixing  minimum 
jurisdictional  amount  in  cases  purely  pecuniary  at  five  hundred 
dollars. 

1  Q^^Qo?  ^^^®  ^*  ^''^''  ^^-  ^^'^^good,  80  Va.,  342,  decided  March 
ly,  1885,  It  was  held:  Where  a  deed  conveys  property  alleged 
therein  to  be  worth  over  five  hundred  dollars,  and  is  assailed  as 
fraudulent  by  a  creditor  whose  debt  is  less  than  five  hundred 
doJJars  as  between  the  grantee  and  the  assailing  creditor,  the 
matter  in  controversy  is  the  value  of  the  property  and  not  the 
amount  of  the  debt,  and  in  the  absence  of  proof  to  the  contrary, 
the  alleged  must  be  deemed  the  actual  value  of  the  property. 
In  the  case  of  Duffy  <&  Bolton  vs.  Figgatt,  80  Va.,  664,  de- 


Citations  to  the  Code  of  Virginia.  7 

cided  September  17, 1885,  this  niling  in  the  case  of  Cox  vs.  Cai'r 
et  als.,  79  Va.,  28,  quoted  s^ipra,  was  reiterated. 

In  the  case  of  Whitmer's  heirs  vs.  Spitzer  et  als.,  81  Va.,  64, 
decided  October  8,  1885,  where  a  decree  was  rendered  in  the 
court  below  requiring  Spitzer  to  pay  nine  hundred  and  seventy- 
five  dollars  to  equalize  four  other  heirs  with  his  wife,  he  paid  the 
money.  Later,  an  inquiry  resulted  in  a  decree  that  the  wife  of 
Spitzer  was  entitled  to  an  equal  share  of  that  sum,  and  that  the 
four  other  heirs  refund  to  Spitzer  one-fifth  thereof.  The  court 
of  appeals  held :  This  is  a  decree  for  payment  of  a  less  sum  of 
money  than  constitutes  the  minimum  jurisdictional  amount,  and 
the  appeal  must  be  dismissed. 

In  the  case  of  Cralle  vs.  Cralle,  81  Va.,  773,  decided  April 
25,  1886,  pending  a  divorce  suit,  the  trial  court  decreed  alimony. 
From  the  decree,  appeal  was  taken  and  supersedeas  awarded. 
Pending  the  appeal,  trial  court  decreed  to  the  woman  an  allow- 
ance of  one  hundred  and  fifty  dollars  to  enable  her  to  defend 
the  suit  in  this  court,  and  twenty-five  dollars  a  month  for  her 
maintenance  during  the  pending  of  the  suit.  The  Supreme 
Court  of  Appeals  held :  The  court  below  was  authorized  to 
make  the  decree  last  appealed  from.  2nd.  The  amount  decreed, 
however,  being  less  than  the  minimum  jurisdictional  sum,  the 
appeal  must  be  dismissed.  3rd.  The  appellants  remedy  is  by 
writ  of  prohibition  from  this  court  to  the  execution  of  the 
decree. 

In  the  case  of  Wifz  vs.  Osburn,  11  Va.,  Law  Journal,  585,  de- 
cided April  21,  1887,  it  was  held :  Where  the  amount  in  contro- 
versy in  an  appeal  is  above  the  jurisdictional  limit  as  to  one  of 
the  appellants  only,  but  the  questions  presented  are  identical  as 
to  all  the  appellants,  and  their  interests  cannot  be  severed. 
The  appeal  will  not  be  dismissed  as  to  those  whose  claims  are 
below  the  jurisdictional  amount. 

In  the  case  of  Thompson  vs.  Adams,  11  Va.  Law  Journal,  217, 
decided  December  9,  1886.  Timberlake  and  J.  A.  Thomp- 
son have  each  a  judgment  against  S.  G.  Thompson,  neither 
of  which  amounts  to  five  hundred  dollars.  The  judgment 
debtor  having  conveyed  his  land  to  one  Adams,  these  judg- 
ment creditors  bring  their  bill  to  set  aside  the  deed  as  fraudu- 
lent, and  subject  the  land  to  the  payment  of  their  judgment,  the 
bill  being  dismissed  they  appealed.  The  court  held :  1st.  The 
decree  is  to  be  considered  severally  as  to  each  creditor,  and 
neither  judgment  amounting  to  five  hundred  dollars,  the  limit 
fixed  by  the  Constitution,  the  court  has  no  jurisdiction  to  allow 
or  hear  an  appeal  from  the  decree.  (This  affirms  the  ruling  in 
Umherger  vs.  Watts,  25  Grat.,  167.)  2nd.  The  fact  that  one 
object  of  the  bill  was  to  set  aside  the  alleged  fraudulent  convey- 
ance does  not  alter  the  case  that  was  merely  an  incident  to  the 


8  Citations  to  the  Code  of  Virginia. 

main  object,  which  was  to  subject  the  land  to  the  payment  of 
the  judgments. 

In  the  case  of  Pannill  vs.  Coles,  81  Va.,  380,  decided  January 
21,  1886,  it  was  held :  State  Constitution,  Article  6,  Section  2, 
gives  this  court  appellate  jurisdiction  in  controversies  concern- 
ing the  title  or  boundaries  of  land,  whatever  the  amount  and 
whatever  the  element  of  title  involved  in  the  controversy,  and 
consequently  such  jurisdiction  extends  to  cases  of  unlawful  en- 
try and  detainer. 

In  the  case  of  Board  of  Supervisors  vs.  Catlett's  executor,  86 
Va.,  159,  decided  June  13,  1889,  it  was  held :  A  suit  as  to  the 
right  of  the  board  of  supervisors  to  levy  a  tax  to  pay  a  claim 
concerns  a  franchise,  and  this  court  hath  jurisdiction. 

Article  6,  Section  3. 
In  the  case  of  Boiling  vs.  Lersner,  26  Grat.,  36,  decided 
March  25,  1875,  it  was  held :  The  act  of  February  28,  1872,  to 
provide  a  special  court  of  appeals  to  consist  of  three  judges  of 
the  circuit  courts,  is  constitutional,  and  the  decisions  of  the 
court  are  valid  and  binding  on  the  parties  to  the  causes  decided. 
The  case  referred  to  as  26  Grat.,  45,  is  the  case  above  cited. 

Article  6,  Section  8. 

In  the  case  of  Blair  {Attorney- General)  vs.  Marye  (Audito?-), 
80  Va.,  485,  decided  May  7,  1885,  it  was  held :  By  Section  8, 
Article  6,  State  Constitution,  the  election  and  commissioning  of 
an  attorney-general  is  provided  for,  and  is  directed  that  he  shaU 
perform  such  duties  as  the  law  may  prescribe,  it  is  not  within  the 
power  of  the  legislature  itself  to  withhold  from  him  the  salary 
which  is  prescribed  by  law,  nor  to  delegate  such  powei?  to  the 
auditor. 

The  salary  of  the  attorney-general  is  of  constitutional  grant 
and  of  public  official  right,  and  the  doctrine  of  off-set  cannot  be 
applied  to  it.  It  is  not  liable  to  attachment,  to  garnishment, 
nor  to  assignment  in  bankruptcy,  and  upon  principles  of  public 
policy  it  has  absolute  immunity  from  detention  for  debt  or 
counter  claims. 

The  act  of  General  Assembly  passed  November  24,  1884, 
Acts  (extra  session)  1884,  p.  90,  requiring  the  auditor  to  with- 
hold the  salary  of  any  officer  who  is  indebted  to  the  State  for 
money  collected  by  him,  or  improperly  drawn  by  him,  during 
his  term  of  office,  until  the  default  is  made  good,  is  unconstitu- 
tional and  void  so  far  as  it  affects  constitutional  offices. 

Article  6,  Section  14. 
In  the  case  of  Chahoon  vs.  Commonwealth,  21  Grat.,  822,  de- 
cided December  13,  1871,  it  was  held :  This  was  not  intended  to 
restrict,  but  to  enlarge  the  jurisdiction  of  these  courts,  and  to 


Citations  to  the  Code  of  Virginia.  9 

•elevate  them  to  the  dignity  of  circuit  courts,  and  it  was  compo- 
nent for  the  legislature  to  give  to  the  corporation  courts  juris- 
diction to  try  cases  of  felony,  though  the  jurisdiction  in  such 
cases  is  taken  away  from  the  circuit  courts. 

In  the  case  of  Craft  vs.  Covfimonwealth,  24  Grat.,  606,  de- 
cided December  11,  1873,  it  was  held :  The  jurisdiction  of  cor- 
poration courts  (save  that  of  the  city  of  Richmond)  is  the  same 
as  that  of  the  circuit  courts,  and  also  such  jurisdiction  as  the 
former  hustings  courts  of  the  respective  cities  had  under  the 
laws  as  they  existed  on  the  26th  day  of  January,  1870. 

Article  6,  Section  20. 

In  the  case  oiBurche  vs.  Ilardwicke,  30  Grat.,  30,  decided  March 
14, 1873,  it  was  held :  Though  under  the  Constitution  of  the  State, 
Article  6,  Section  20,  the  mayor  has  the  authority  to  remove 
the  officers  of  the  municipality,  the  Constitution  does  not  invest 
him  with  the  power  to  remove  State  officers,  though  they  are 
•elected  by  the  people  of  the  municipality,  or  appointed  by  the 
municipal  authorities,  and  are  paid  by  them.  The  chief  of 
police  of  a  city  is  an  officer  of  the  State,  and  not  of  the  muni- 
cipality in  which  he  exercises  his  office. 

In  the  case  of  Roche  vs.  Jones  {Sergeant),  87  Va.,  484,  decided 
March  5,  1891,  it  was  held:  The  legislature  incorporating  a 
town  may  appoint  the  officers  to  exercise  their  functions  until  a 
regular  election,  notwithstanding  Article  6,  Section  20,  provides 
that  town  officers  shall  be  electors  of  such  town. 

Article  6,  Section  22. 

In  re  Broaddus,  32  Grat.,  779,  decided  February  19,  1880,  it 
was  held  :  Where  the  term  of  a  judge  ended  December  31, 1879, 
and  his  successor  was  elected  January  12,  1880,  his  term  com- 
menced in  January,  1880,  and  he  is  judge  of  the  county  from 
the  time  of  his  qualification,  and  authorized  at  once  to  exercise 
authority  and  discharge  the  duties  of  the  office. 

In  re  Fisher,  33  Grat.,  232,  decided  April  29,  1880,  it  was 
held :  Manchester  was  incorporated  as  a  city  in  1874,  and  hav- 
ing more  than  five  thousand  inhabitants,  it  was  entitled  to  a 
judge  of  said  court.  This  being  the  first  judge  of  this  court, 
under  the  Constitution,  C.'s  term  of  office  commenced  on  the 
first  of  January,  1875,  and  would  continue  until  the  31st  of  De- 
cember, 1880,  and  he  was,  under  the  Constitution,  authorized 
to  act  as  judge  from  the  time  of  his  qualification  to  the  com- 
mencement of  his  term. 

In  the  case  of  Foster  vs.  Jones,  79  Va.,  642,  decided  Decem- 
ber 4,  1884,  it  was  held :  The  General  Assembly  cannot,  di- 
rectly or  indirectly,  abolish  any  constitutional  office,  that  is,  one 
whose  term  is  defined  by  the  Constitution,  but  may,  directly  or 
indirectly,  abolish  any  legislative  office,  that  is,  one  created  by 


10  Citations  to  the  Code  of  Virginia. 

the  General  Assembly  itself.  Where  a  county  judge  has  been 
elected  for  a  judicial  district  composed  of  two  counties,  the  legis- 
lature may  curtail  his  jurisdiction,  his  territorial  district  having- 
still  at  least  eiglit  thousand  inhabitants.  Such  curtailment  and 
consequent  loss  of  additional  compensation  of  twenty  dollars 
for  every  thousand  inhabitants  over  ten  thousand  provided  for 
county  judges  by  act  approved  March  12,  1878  (Acts  1877-78, 
p.  172,  sec.  10),  did  not  violate  Section  22,  Article  6,  of  the 
Constitution. 

Article  6,  Section  25. 

In  the  case  of  Lawhoriie,  18  Grat.,  85,  decided  January 
15,  1868,  it  was  held :  This  section  applies  to  State  offices,  and 
the  governor,  whose  term  has  expired,  holds  over  until  his  suc- 
cessor is  qualified. 

In  the  case  of  Broaddus,  32  Grat.,  779,  decided  February  19,. 
1880,  it  was  held :  When  there  is  an  election  after  the  expira- 
tion of  the  predecessor's  term,  his  authority  dates  from  the  time 
of  his  qualification. 

In  the  case  of  Johnson  vs.  Mann  {Judge),  and  Couch  ( Treasurer), 

11  Va.,  265,  decided  March  15,  1883,  it  was  held:  Under  the 
Constitution  and  laws  of  this  State,  county,  municipal,  and  dis- 
trict officers  must  qualify  before  the  day  whereon  their  terms- 
respectively  begin,  else  their  offices  are  vacated,  and  the  incum- 
bents continue  to  discharge  the  duties  of  the  offices  after  their 
terms  of  office  have  expired  until  their  successors  have  qualified. 

Article  7,  Section  5. 

In  the  case  of  Bunting  vs.  Willis  {Judge),  27  Grat.,  144,  de- 
cided February  10,  1876,  it  was  held:  The  office  of  sheriff  com- 
mences on  the  first  of  July.  If  a  person  holding  an  office  of 
profit  under  the  United  States  Government  is  elected  to  office  of 
sheriff,  which  is  an  office  of  profit  under  the  State  government,, 
and  holds  his  office  under  the  former  government  until  any  time 
during  the  first  of  July,  he  thereby  vacates  his  election  as  sheriff^ 
and  is  not  entitled  to  qualify  as  such. 

In  the  case  of  Shell  {Judge)  vs.  Cousins  et  als.,  11  Va.,  328^ 
decided  March  29,  1883,  it  was  held :  Any  office  is  incompati- 
ble with  that  of  sheriff.  Sheriffs  acceptance  of  any  office  ac- 
tually vacates  the  sheriffalty,  and  no  judgment  of  amotion  is 
necessary  where  an  office  has  been  forfeited  by  a  removal  or  the 
acceptance  of  an  incompatible  office.  When  the  office  of  sheriff 
is  thus  made  vacant,  it  becomes  the  duty  of  the  county  court 
judge  to  fill  the  vacancy  in  the  mode  prescribed  by  the  law. 
The  sheriffs  resignation  of  the  second  office,  after,  by  acceptance,, 
he  has  vacated  the  first  cannot  restore  him,  or  otherwise  affect 
the  first.     As  the  law  makes  it  the  duty  of  the  county  court 


Citations  to  the  Code  of  Virginia.  11 

judge  to  fill  the  vacancy  in  the  sheriffalty,  the  circuit  court  has 
no  authority  to  issue  a  writ  of  prohibition  to  restrain  this  exer- 
cise of  his  jurisdiction.  If  he  exercises  it  erroneously,  the 
remedy  is  by  appeal.  Prohibition  lies  only  in  case  of  trans- 
cending jurisdiction.  This  court  has  ever  discouraged  the 
employment  of  a  writ  of  prohibition  as  a  process  to  correct  the 
error  of  inferior  tribunals,  and  thus  usurp  the  functions  of  the 
writ  of  error.     (Article  8,  Section  8.) 

In  the  case  of  Greenhow  {Treamirer),  vs.  Yashon,  81  Va.,  336, 
decided  January  14,  1886,  it  was  held :  An  act  making  school 
taxes  payable  only  in  lawful  money  of  the  United  States  is  in 
accordance  with  the  Constitution.     No  coupons  can  be  received. 

Article  10,  Section  1. 

In  the  case  of  Commonwealth  vs.  Moore  &  Goodsons^  25  Grat.,. 
951,  decided  January  7,  1875,  it  was  held:  The  act  chapter  240, 
Section  Acts  of  1874,  which  imposes  a  license  tax  on  merchants, 
is  constitutional. 

In  the  case  of  Town  of  Danville  vs.  Shelton  et  als.,  76  Va., 
325,  decided  May  30, 1882,  an  ordinance  imposing  on  every  one 
engaged  in  purchasing  leaf  tobacco  in  Danville  a  tax  of  ten  dol- 
lars and  one  per  cent,  on  capital  employed,  and  in  addition 
fifteen  cents  per  thousand  pounds  purchased  monthly,  was  in 
question.  Held:  This  feature  is  illegal.  As  a  tax  of  fifteen 
cents  on  the  thousand  pounds,  without  regard  to  value,  is  un- 
equal as  a  license,  it  is  not  warrantable,  because  the  business 
could  have  been  reached  on  the  ad  valorem  principle. 

In  the  case  of  Peters  vs.  City  of  Lynchburg,  76  Va.,  927,  de- 
cided April  13,  1882,  has  been  quoted  as  an  authority  on  this 
point,  but  it  is  mere  affirmation  of  a  decision  of  the  lower  court 
by  a  divided  court,  and  the  whole  case  is  really  obiter  dictum, 
save  as  to  a  question  as  to  whether  the  council  of  Lynchburg 
had  authority  to  impose  a  tax  on  successions  under  its  charter 
and  Code  1873,  Chapter  54,  Section  33. 

In  the  case  of  the  Norfolk  and  Western  Railroad  Company 
vs.  Supervisors  of  Smythe  County,  87  Va.,  521,  decided  March 
19, 1891,  it  was  held :  County  supervisors  are  authorized  to  levy 
a  tax  on  railroad  property  in  their  county  at  any  time  after  the 
passage  of  the  act  of  February  27,  1880,  based  on  the  State 
assessment  made  previous  to  that  act.  And  where  the  levy 
recites  that  fact  the  levy  will  be  presumed  legal. 

Article  10,  Section  4. 
Case  of   Tow7i  of  Danville  vs.  Shelton  et  als.,  76  Va.,  325, 
quoted  supra — Article  10,  Section  1. 

Article  10,  Section  10. 
In  the  case  of  Dinwiddie  County  vs.  Stuar't,  Buchanan  i&  Co.y 


12  Citations  to  the  Code  of  Virginia. 

^8  Grat.,  526,  decided  April  26,  1877,  it  was  held :  The  act  of 
May  9,  1862,  entitled  an  act  to  authorize  the  county  courts  to 
purchase  and  distribute  salt  amongst  the  people  and  provide 
payment  for  the  same,  is  constitutional  on  the  ground  that  the 
then  government  has  been  repeatedly  recognized  as  a  de  facto 
government,  and  its  contracts  must  be  enforced. 

In  the  case  of  Pulaski  County  vs.  Stuart,  Buchanan  d)  Co.,  28 
Grat.,  872,  the  above  case  was  affirmed  and  its  principles  re- 
iterated. 

Article  11,  Section  1. 

In  the  homestead  cases,  22  Grat.,  266,  decided  June  13, 1872, 
it  was  held :  The  Article  11,  Section  1,  of  the  Constitution  of 
Virginia,  and  the  act  of  June  27,  1870,  ch.  157,  passed  in  pur- 
suance thereof  in  relation  to  homestead  exemptions,  are  in  con- 
flict with  Article  8,  Section  10,  of  the  Constitution  of  the  United 
States,  which  provides  that  no  State  shall  pass  any  law  impair- 
ing the  obligation  of  contracts  so  far  as  the  Virginia  Constitution 
went  into  operation. 

In  the  case  of  Hatorffy^.  Wellford  {Judge),  27  Grat.,  356,  de- 
cided March  30, 1876,  it  was  held :  A  householder  dying  leaving 
a  widow,  without  having  had  a  homestead  assigned  him  in  his 
life-time,  his  widow  remaining  unmarried  is  entitled  to  claim  the 
«ame  and  have  it  assigned  to  her. 

In  the  case  of  Commonwealth  vs.  Ford  et  als.,  29  Grat.,  683, 
decided  January  17,  1878,  it  was  held :  The  third  exception  in 
the  proviso  to  the  first  section  of  Article  11,  of  the  Constitution 
of  the  State,  embraces  the  liability  of  a  collector  of  taxes  and 
also  of  his  sureties  in  his  official  bond.  And,  therefore,  said 
sureties  are  not  entitled  to  their  homestead  exemption  as  against 
the  Commonwealth  in  a  proceeding  against  them  and  their 
principal  to  recover  the  amount  of  taxes  for  which  the  collec- 
tor had  failed  to  account. 

In  the  case  of  Reed  vs.  Union  Bank  of  Winchester,  29  Grat., 
719,  decided  January  31,  1878,  it  was  held:  The  act  which 
authorizes  the  waiver  of  the  homestead  exemption  is  not  in  con- 
flict Avith  this  article.  And  if  a  party  executing  his  bond  or 
note,  waiving  the  homestead,  neither  he  nor  his  wife  can  set  up 
homestead  exemption  as  against  the  said  bond  or  note. 

In  the  case  of  Calhoun  vs.  Williams,  82  Grat.,  18,  decided 

u-i!i^^'  ■^^'^^'  ^*  ^^^^  ^^®^^'  ^^^-  ^^  unmarried  man  who  has  no 
children  or  other  persons  dependent  on  him  living  with  him, 
though  he  keeps  house  and  has  persons  hired  by  him  living 
with  him,  IS  not  a  householder  or  head  of  a  family  within  the 
meaning  of  tliese  terms  used  in  the  Constitution  and  laws  of 
Virginia,  and,  therefore,  is  not  entitled  to  the  homestead  exemp- 
tion as  provided  by  the  same.  2d.  The  terms  householder  and 
bead  of  a  family  have  the  same  meaning  in  the  provision  of  the 
•Constitution  and  statute  relating  to  homesteads 


Citations  to  the  Code  of  Virginia.  13; 

In  the  case  of  Lindsay  vs.  3Iu7'phey,  76  Va.,  428,  decided 
April  27,  1882,  it  was  held :  The  privilege  of  homestead  is  ac- 
corded only  to  citizens  of  this  State  while  they  remain  such. 

2.  Change  of  domicile  from  this  State  puts  an  end  to  the 
homestead  privileges. 

In  the  case  of  Scott  vs.  Cheatham  ei  ah.,  78  Va.,  82,  decided 
November  28,  1883,  the  ruling  in  Ilatorffy^.  Wellford  {Judge), 
27  Grat.,  356,  quoted  supra,  was  confirmed  and  reiterated,  also 
held:  This  exemption  is  a  privilege,  and  may  be  waived  or 
claimed  as  the  householder  may  elect. 

In  the  case  of  Burton,  <&c.,  vs.  Mills  et  als.,  78  Va.,  468,  de- 
cided March  13,  1884,  it  was  held:  The  homestead  exemption 
does  not  protect  against  a  demand  for  damages  for  breach  of 
promise  to  marry,  which  is  not  a  debt  contracted,  but  a  quasi 
tort. 

In  the  case  of  Wray  vs.  Davenport,  79  Va.,  19,  decided  April 
3,  1884,  it  was  held :  The  Constitution  (Art.  11)  secures  home- 
stead, yet  the  legislature  may  prescribe  the  mode  of  setting  it. 
apart,  only  it  cannot  defeat  or  impair  the  benefit  thereof.  Chap- 
ter 183,  Code  of  1873,  is  within  legislative  authority,  and  to  the 
availmeut  thereof  the  householder  must  actually  set  it  apart  a& 
prescribed. 

In  the  case  of  WilJcerson  vs.  Murville  et  als.,  87  Va.,  513,  de- 
cided March  19,  1891,  it  was  held :  "Where  homestead  exemp- 
tion has  been  regularly  set  apart,  it  is  for  the  benefit  of  the 
householder  and  his  family,  and  is  not  ended  by  the  latter's  de- 
cease. 

Article  11,  Section  1,  Proviso  2. 
In  the  case  of  Farinholt  vs.  Buchard,  10  Virginia  Law  Jour- 
nal, 213,  decided  February  11,  1866,  it  was  held :  One  engaged^ 
in  carrying  the  United  States  mail  over  a  county  post  route  is  a 
laboring  person  within  the  meaning  of  those  words  as  used  in 
the  Virginia  Constitution,  and  the  fact  that  he  owns  the  horse 
and  vehicle  used  by  him  for  that  purpose  does  not  alter  the  case. 

Article  11,  Section  9. 
In  the  case  of  Scott  v.  Llaxib,  88  Va.,  721,  decided  January  28, 
1892,  the  plaintiff  was  born  in  1862  of  parents  living  together  as 
husband  and  wife  from  1861  to  1864,  he  being  a  colored  man, 
and  she  a  slave,  and  dying  then,  and  plaintiff  was  recognized  as 
his  child,  and  as  such  was  reared  to  womanhood.  The  court 
held :  Under  the  Constitution,  Article  11,  Section  9,  and  act  of 
February  27,  1866,  Section  2,  she  was  his  legitimate  child,  and 
entitled  to  share  by  inheritance  in  his  real  estate. 


THE  CODE  OF  VIRGINIA, 


TITLE  1. 
CHAPTER   I. 


TITLE  IL 
CHAPTER  II. 

Section  3. 

In  the  case  of  Dykes  &  Co.  vs.  Woodhouse,  Admr,  3  Raud., 
287  it  was  held:  The  process  of  scire  facias  is  saved  under  this 
statute,  whether  it  originated  from  the  common  law  or  by 
statute.     2  Westm.,  45. 

Section  5,  Par.  3. 

In  the  case  of  Booker  vs.  Young  et  als.,  12  Grat.,  303,  de- 
cided April,  1855,  it  was  held:  A  majority  of  the  directors  of  a 
bank  constitute  a  board  to  do  business ;  and  if  in  the  election 
of  a  president  a  majority  vote,  the  person  receiving  a  majority 
of  the  votes  cast  is  duly  elected. 

Section  5,  Pae.  4. 
In  the  case  of  Pierce's  executors  et  als.  vs.  Harrisons  executors 
et  als.,  31  Grat.,  114,  decided  November  28, 1878,  on  (page  118.) 
-The  court  refers  to  this  section  as  a  definite  and  final  definition  of 
the  words  "  personal  representative." 

The  reference  to  33  Grat.,  267,  is  to  the  case  of  Brown  et  als. 
vs.  Lamherfs  administrators,  this  case  does  not  construe  the 
statute,  but  the  statute  is  cited  as  ruKng  the  case. 

Section  5,  Par.  8. 

In  the  case  of  Tumhull  vs.  Thompson  et  als.,  27  Grat.,  306, 
decided  March  16,  1876,  it  was  held :  A  summons  in  debt  is 
served  on  a  defendant  on  the  third  of  February,  and  the  judg- 
ment by  default  becomes  final  on  the  third  of  March.  Under 
the  statute  the  day  of  the  service  of  the  process  may  be  counted, 
and  therefore  thirty  days  had  elapsed  between  the  service  of 
process  and  the  judgment,  and  it  is  a  valid  judgment. 

The  reference  to  27  Grat.,  318,  is  an  error. 

Section  5,  Par.  9. 
In  the  case  of  Michie  vs.  MIC/lie's  administrator,  17  Grat., 


Citations  to  the  Code  of  Virginia.  15 

109,  decided  October  17,  1866,  it  was  held:  Sunday,  being 
dies  no7i  juridicus,  is  not  one  of  the  days  of  the  term  of  a 
€ourt. 

In  the  case  of  Bead  vs.  Commonwealth^  22  Grat.,  924,  de- 
cided December  11,  1872,  it  was  held:  Sunday  is  not  to  be 
counted  as  one  of  the  days  of  the  term  of  a  court. 

In  the  case  of  Boioles  vs.  Brauer  et  als.,  89  Ya.,  466,  decided 
December  8,  1892,  it  was  held :  In  court-practice,  Sunday  is 
not  to  be  reckoned.  When  a  statute  prescribes  a  certain  num- 
ber of  days  within  which  an  act  is  to  be  done,  and  says  nothing 
about  Sunday,  it  is  to  be  included,  unless  the  last  day  falls  on 
Sunday,  in  which  case  the  act  may  generally  be  done  on  the 
succeeding  day,  but  if  the  act  may  be  lawfully  done  on  Sunday, 
and  the  last  day  falls  on  Sunday,  then  Sunday  is  not  to  be  ex- 
cluded. 

Section  5,  Par.  12. 

In  the  case  of  Clegg  vs.  Lemes&iirier,  15  Grat.,  108,  decided 
April,  1859,  it  was  held:  A  writing  for  the  payment  of  money  or 
other  purpose,  which  is  not  required  to  be  by  deed,  having  a 
scroll  at  the  foot  thereof  with  the  word  seal  written  therein,  but 
which  is  not  recognized  in  the  body  of  the  instrument  as  a  seal, 
is  not  a  sealed  instrument. 

Evidence  aliunde  is  not  admissible  to  prove  that  a  scroU  at 
a  foot  of  a  writing  was  intended  as  a  seal. 

Section  5,  Par.  13. 

In  the  case  of  B.  and  0.  R.  R.  Co.  vs.  Gallaku^s  admAnistra- 
ior,  12  Grat.,  655,  decided  July,  1855,  it  was  held:  When  the 
word  person  is  used  in  a  statute,  corporations  as  well  as  natural 
persons  are  included  for  civil  purposes. 

In  the  case  of  TJie  Western  Union  Telegraph  Company  vs.  The 
City  of  Richmond,  26  Grat.,  1,  decided  March  18,  1875,  it  was 
lield :  Though  the  ordinance  of  the  city  imposing  taxes  speaks 
only  of  persons  or  firms  doing  business  in  the  city,  yet  it  im- 
poses a  tax  in  terms  on  telegraph  companies,  and  obviously 
intends  to  include  incorporated  companies  as  well  as  individ- 
uals. Corporations  are  to  be  deemed  and  taken  as  persons 
when  the  circumstances  in  which  they  are  placed  are  iden- 
tical with  those  of  natural  persons  expressly  included  in  a 
statute. 

In  the  case  of  Miller's  Ex'ors  vs.  Commonwealth,  27  Grat., 

110,  decided  February  3,  1876,  it  was  held:  Corporations  are 
included  under  the  term  "  persons"  in  a  statute,  unless  they  are 
exempted  by  its  terms,  or  by  the  nature  of  the  subject  to  which 
the  statute  relates.  The  reference  to  27  Grat.,  115,  is  to  the 
case  cited  above  from  page  110. 


16  Citations  to  the  Code  op  Vieginia. 

In  the  case  of  City  of  Lynchburg  vs.  Norfolk  and  Western 
Railroad  Company,  80  Va.,  237,  decided  February  19,  1885,  it 
was  held :  Section  5,  of  Charter  of  City  of  Lyncliburg,  grants 
authority  to  impose  a  license  tax  upon  persons  engaged  in  cer- 
tain enumerative  callings,  and  upon  any  other  person  or  employ- 
ment which  it  may  deem  proper;  whether  such  person  or 
employment  be  herein  specially  enumerated  or  not  does  not 
empower  the  city  to  impose  such  a  tax  upon  a  railroad  corpora- 
tion, which  is  neither  a  person  nor  an  employment,  within  the 
ordinary  acceptation  of  those  words. 

Section  6. 

In  the  case  of  Parramore  vs.  Taylor,  11  Grat.,  220,  decided 
April  1854,  it  was  held  :  In  construing  the  Code  the  rule  of  con- 
struction is  that  the  old  law  was  not  intended  to  be  altered,  un- 
less such  intention  plainly  appears. 

In  the  case  of  Crawford  vs.  Halsted  &  Putnam.,  20  Grat., 
211,  decided  January  9,  1871,  it  was  held :  A  deposition  of  a 
party  to  be  read  in  a  pending  cause  at  law  was  commenced  be- 
fore the  passage  of  the  act  of  March  2,  1866  (Session  Acts 
1865-'66,  p.  86),  which  required  that  parties  should  testify  ore 
tenus^  but  it  was  not  completed  until  that  law  went  into  effect. 
The  deposition  is  inadmissible  as  evidence  if  objected  to.  In- 
choate rights  derived  under  a  statute  are  lost  by  a  repeal  of  the 
statute  before  they  are  perfected,  unless  they  are  saved  by  ex- 
press words  in  the  repealing  statute. 

The  act,  ch.  16,  sec.  18,  of  the  Code,  edition  1860,  does  not 
save  the  right  to  a  party  to  a  suit  to  give  evidence  by  his  depo- 
sition where  the  taking  of  it  was  commenced  before  the  passage 
of  act  of  March  2,  1866,  but  it  was  not  completed  until  that  act 
was  passed.  The  reference  to  20  Grat.,  223,  is  to  the  case  above 
cited  from  page  211. 

In  the  case  of  Powers  &  Kellogg  vs.  Tazeicells,  25  Grat.,  786, 
decided  February  4,  1875,  it  was  held  :  Though  the  act  of  April 
18,  1874,  repealed  the  act  of  April  1, 1873,  the  repeal  could  not 
defeat  the  interest  in  oyster-beds  which  had  already  vested,  and 
on  which  the  tax  was  paid  before  the  repealing  act  was  passed, 
though  the  beds  were  not  staked  off  till  after  its  passage.  The 
reference  to  25  Grat.,  793,  is  to  the  case  above  cited  from  page 
786. 

In  the  case  of  Pierce's  Ex'ors  et  als  vs.  Harrison's  Ex'ors  et 
als.,  31  Grat.,  114,  decided  November  28,  1878,  it  was  held  (p. 
120) :  By  the  terms,  "  right  accrued  or  claim  arising,"  could 
hardly  have  been  intended  rights  and  interests  so  vested  as  to 
be  beyond  legislative  interference,  for  as  to  these  no  saving  was 
necessary;  but  such  rights  and  claims  must  have  been  intended 
as  might  be  affected  by  ordinary  legislation.     If,  therefore,  as 


Citations  to  the  Code  of  Virginia.  17 

contended,  the  rights  of  creditors  of  a  decedent  to  payment  of 
their  debts  in  the  order  prescribed  by  the  statute  are  not  vested 
rights,  they  are,  we  think,  within  the  rule  of  construction  pro- 
vided by  the  statute. 

In  the  case  of  Whites  Adm^r.  vs.  Freeman,  79  Va.,  597,  de- 
cided December  4,  1884,  it  was  held :  If,  by  a  new  law  repeal- 
ing a  former  law,  any  penalty,  forfeiture,  or  punishment  be 
mitigated  by  any  provision  of  the  new  law,  such  provision  may, 
with  the  consent  of  the  parties  aifected,  be  applied  to  any  judg- 
ment pronounced  after  the  new  law  takes  effect,  this  applies  to 
forfeitures  in  civil  as  well  as  criminal  cases. 

In  the  case  of  Ryan  vs.  The  Commonwealth,  80  Va.,  385,  de- 
cided April  2,  1885,  it  was  held :  Unless  a  statute,  by  its  lan- 
guage, expressly  or  by  necessary  implication,  demands  such 
construction,  it  mil  not  be  construed  as  repealing  a  previous 
statute,  or  as  being  retrospective. 

Section  7. 

In  the  case  of  Booth  vs.  Commonwealth,  16  Grat.,  519,  de- 
cided April  10,  1861,  it  was  held:  An  act  repealing  a  provision 
of  the  common  law  is  itself  repealed,  the  common  law  provision 
is  revived,  this  section  applies  to  statutes  not  to  the  common 
law. 

The  reference  to  16  Grat.,  529,  is  to  the  same  case  above  cited 
from  page  519. 

In  the  case  of  Insurance  Company  of  the  Yalley  of  Yirginia 
vs.  Barley's  Adm'r.,  16  Grat.,  363,  decided  February  18, 1863,  it 
was  held  :  When  a  statute  changing  the  common  law  is  repealed, 
the  common  law  is  restored  to  its  former  state. 

In  the  case  of  Cravford  vs.  Ilalsted  &  Putnam,  20  Grat., 
211,  decided  January,  1871, it  was  held:  A  deposition  of  a  party, 
to  be  read  in  a  pending  cause  at  law,  was  commenced  before  the 
passage  of  the  act  of  March  2,  1866,  Session  Acts,  1865-'66,  p. 
86,  which  required  that  parties  should  testify  ore  tenus,  but  it 
was  not  completed  until  that  law  went  into  effect.  The  deposi- 
tion is  inadmissible  as  evidence,  if  objected  to.  Inchoate  rights 
derived  under  a  statute  are  lost  by  repeal  of  the  statute  before 
they  are  perfected,  unless  they  are  saved  by  express  words  in 
the  repealing  of  the  statute. 


TITLE  III. 

CHAPTEK  III. 


Section  13,  Par.  8. 
In  the  case  of  Hendricks  vs.  Commonwealth,  75  Va.,  934,  de- 
cided March,  1882,  it  was  held,  page  941 :  The  effect  of  this 
2 


18  Citations  to  the  Code  of  Virginia. 

article  is  to  give  the  State  of  Virginia  concurrent  jurisdiction 
with  the  State  of  Maryland,  over  the  Potomac  River  from  shore 
to  shore,  and  over  that  part  of  the  Potomac  Eiver  which  is  with- 
in the  limits  of  Virginia,  to  enact  such  laws  with  the  consent 
and  approval  of  Maryland  as  may  be  deemed  necessary  and 
proper  for  the  preservation  of  fish  in  said  waters.  The  power 
of  the  State  to  enact  such  laws  carries  with  it  the  judicial  power 
to  enforce  them. 

CHAPTER  IV. 
CHAPTER  V. 


TITLE  IV. 
CHAPTER  VI. 


Section  43. 

The  cases  cited  from  2  Rand.,  206-276,  and  28  Grat.,  69,  are 
in  construction  of  the  acts  previously  in  force,  and  have  no  re- 
lation to  this  act. 

Section  49. 

In  the  case  of  McPherson  vs.  Commonwealth',  28  Grat.,  939, 
decided  May  1,  1877,  it  was  held :  A  woman  whose  father  was 
white,  and  whose  mother's  father  was  white,  and  whose  great- 
grandmother  was  of  brown  complexion,  is  not  a  negro  in  the 
sense  of  the  statute. 

In  the  case  of  Greenhow  et  als.  vs.  Jame^s  executor,  80  Va.,  636, 
decided  April  16,  1885,  it  was  held :  Code  1873  ch.  119,  sections 
six  and  seven,  providing,  "that  if  a  man  had  offspring  by  a 
woman,  shaU  afterwards  intermarry  with  her,  such  offspring  if 
uecognized  by  him  before  or  after  the  marriage,  shall  be  deemed 
legitimate,"  and  that  the  issue  of  marriage,  deemed  null  in  law, 
or  dissolved  by  a  court,  shall  nevertheless  be  legitimate,  does 
not  apply  to  and  legitimate  the  offspring  of  a  co-habitation  in 
this  State  between  a  white  person  and  a  negro,  when  the  parents 
have  subsequently  between  them  celebrated  a  ceremony  of  mar- 
riage, outside  of  this  State,  in  some  place  where  marriage 
between  such  persons  is  lawful. 

In  the  case  of  Scott  vs.  Rauh,  88  Va.,  721,  decided  January 
28,  1892,  it  was  held :  This  section  applies  to  free  negroes,  not 
to  slaves. 


TITLE  V. 
CHAPTER  VII. 


Citations  to  the  Code  of  Virginia.  19 

CHAPTER  VIII. 

Section  83. 
In  the  case  of  Coleman  vs.  Srmds,  87  Va,,  689,  decided  April 
30,  1891,  it  was  held :  Where  under  this  section,  a  voter  appeals 
irom  refusal  of  registrar  to  register  him,  the  answer  of  registrar 
that  voter  did  not  offer  to  qualify  as  to  his  right  to  vote,  and 
that  he  is  not  entitled  to  vote,  held :  No  defence  to  application 
ior  mandamus  to  compel  registrar  to  transmit  to  the  court  the 
ground  relied  on  by  appellant,  and  the  reasons  of  the  refusal. 

Section  84. 
In  the  case  of  Clay  vs.  Ballard,  87  Va.,  787,  decided  May  5, 
1891,  it  was  held :   This  section  provides  that  those  books  be 
open  at  all  times  to  public  inspection,  was  intended  as  a  safe- 
guard against  fraud,  and  must  be  liberally  construed. 

CHAPTER  IX. 

CHAPTER  X. 

Section  117. 
In  the  case  of  McDougal  vs.  Guigon  {Judge),  27  Grat.,  133, 
decided  February  3,  1876,  it  was  held :  The  county  and  corpo- 
ration courts  have  authority  to  remove  a  judge  of  elections  for 
malfeasance  in  office  or  gross  neglect  of  duty,  though  he  has  not 
been  convicted  by  the  verdict  of  the  jury  of  any  offence. 

CHAPTER  XL 

Section  160. 

In  the  case  of  West  vs.  Fergueson  et  als.,  16  Grat.,  270,  de- 
cided April  23,  1861,  it  was  held :  In  cases  of  contested  elec- 
tions before  the  county  court,  the  court  has  no  authority  to  give 
a  judgment  for  costs  to  either  party.  If  in  such  case  the 
-county  court  does  give  a  judgment  for  costs  to  either  party,  a 
writ  of  prohibition  from  a  circuit  court  is  a  proper  proceeding 
to  arrest  the  judgment. 

In  the  case  of  Ellyson  et  als.,  ex  parte,  20  Grat.,  10,  decided 
November,  1870,  it  was  held:  Under  section  69  of  the  act  to 
provide  for  general  elections,  Session  Acts  1870,  page  97,  the 
county  and  corporation  courts  have  authority  to  vacate  an  elec- 
tion. Though  a  person  voted  for  has  received  the  return  and 
has  qualified  and  entered  upon  the  discharge  of  the  duties  of 
the  office,  the  court  may  vacate  the  election  and  direct  another 
•election  to  be  held. 

In  the  case  of  JVelms  vs.  Vaiighan,  84  Va.,  696,  decided  April 


20  Citations  to  the  Code  of  Yikginia. 

6,  1888,  it  was  held :  Writ  of  prohibition  will  be  issued  to  re- 
strain inferior  court  from  exceeding  its  jurisdiction,  but  wiD 
never  be  allowed  to  usurp  place  of  writ  of  error,  especially 
where  the  law  provides  that  no  -writ  of  error  shall  lie. 

The  provisions  of  the  statute  providing  that  county  elections 
shall  be  subject  to  inquiry  by  county  courts  on  petition  of  fifteen 
qualified  voters,  to  which  two  shall  take  and  subscribe  an  oath, 
are  as  to  form  merely  directory,  as  it  is  not  intimated  that  they 
must  be  complied  with ;  else  all  will  be  vitiated,  or  no  farther 
proceedings  can  be  had. 

In  the  case  of  Bichardson  vs.  Farrar,  88  Va.,  760,  decided 
February  11,  1892:  This  statute  commands  that  returns  of 
county  elections  be,  upon  complaint  of  fifteen  or  more  voters  of 
Tindue  election  and  false  return,  and  counter-complaint  if  any 
be  filed,  subject  to  the  inquiry,  determination  and  judgment  of 
the  county  court,  which  shall  proceed,  without  a  jury,  and  on 
the  testimony,  to  decide  the  same  upon  the  merits  according  to 
the  Constitution  and  the  laws.  In  such  a  contest  the  quashing 
and  dismissal  of  a  joint-complaint  of  undue  election  and  false 
return  against  three  at  the  same  election  on  the£ground  of  mis- 
joinder of  defendants,  is  error,  because  the  statute  does  not 
limit  the  contest  to  one,  and  mandamus  lies  to  compel  the  court 
to  proceed  to  hear  and  determine  the  contest. 


TITLE  VI. 

CHAPTER  XII. 

Section  162. 
In  the  case  of  Eoyal  vs.  Thomas,  28  Grat.,  130,  decidedTeb- 
ruar7  1,  1877,  it  was  held:  Under  the  Constitution  and  Statute 
of  Virginia,  a  party  who  has  aided  and  assisted  in  a  duel  fought 
with  deadly  weapons  may  be  removed  from  office  by  a  proceed- 
ing by  qxw  warranto,  or,  if  that  writ  be  not  in  use,  by  informa- 
tion in  the  nature  of  a  quo  warranto,  though  he  has  not  been 
convicted  of  the  oflfence  in  any  criminal  prosecution  against 

Section  163. 

In  the  case  of  ^^n^m^  vs.  Willis  {Judge),  27  Grat.,  144  de- 
cided February  10,  1876,  it  was  held :  The  office  of  sheriff  com- 

nro^r  T  *^i!  n'*  "^  '^"^^-  I^  ^  P^^««^  l^^lding  an  office^f 
tC  offi?  J  I'  Government  of  the  United  States  is  elected  to 
the  office  of  shenflf,  which  is  an  office  of  profit  under  the  gov- 
emmen  of  the  State,  and  holds  his  office  under  the  former  Gov- 
ernment until  any  time  during  the  first  of   July,  he  thereby 


Citations  to  the  Code  of  Vieginia.  21 

vacates  his  election  as  sheriff,  and  is  not  entitled  to  qualify  as 

such. 

The  reference  to  27  Grat.,  152,  is,  to  the  case  above  cited,  from 
page  144. 

Section  165. 

In  the  case  of  Tlie  Cornmonwealth  vs.  Fugate,  2  Leigh,  786, 
decided  June,  1830,  a  justice  of  the  peace  is  convicted  of  the 
felony  of  malicious  stabbing,  sentenced  to  the  penitentiary,  con- 
fined there  and  then  pardoned,  held :  The  conviction  and  judg- 
ment for  this  felony  was  a  forfeiture  of  his  office  of  justice,  and 
incapacitated  him  from  afterwards  acting  under  his  commission ; 
and  the  pardon  neither  avoided  the  forfeiture,  nor  restored  his 
capacity. 

Section  167. 

The  reference  to  22  Grat.,  130,  is  an  error. 


TITLE  VII. 

CHAPTEE   XIII. 

Section  168. 

In  the  case  of  Owens  vs.  O'Brien  et  als,  78  Va.,  116,  decided 
December  6,  1883,  it  was  held :  School  trustees  are  required  to 
take  and  subscribe  the  oath  of  office  as  a  condition  precedent 
to  entering  on  the  discharge  of  their  official  duties,  and  their 
failure  to  take  it  within  the  prescribed  time  vacates  their  trustee- 
ship. If  the  city  council  fails  to  act  within  the  time  prescribed, 
it  becomes  the  duty  of  the  board  of  education'  to  appoint,  and 
such  appointees  constitute  the  lawful  trustees  of  the  city. 

In  the  case  of  Branham  vs.  Long,  78  Va.,  352,  decided  Janu- 
ary 24,  1884,  it  was  held :  Under  the  Constitution  and  laws  of 
this  State,  county,  municipal,  and  district  officers  must  qualify 
by  taking  the  several  oaths  required  by  law  before  the  day 
whereon  their  terms  respectively  begin,  else  their  offices  are  va- 
cant, and  the  incumbents  continue  to  discharge  the  duties  of  the 
offices  after  their  terms  of  office  have  expired  until  their  suc- 
cessors have  qualified. 

Section  177. 
In  the  case  of  Calwell  vs.  Commonwealth,  17  Grat.,  391,  de- 
cided April  17,  1867,  it  was  held :  Upon  the  qualification  of  a 
sheriff,  the  record  of  the  county  court  after  reciting  his  election 
states :  "  That  he  appeared  in  court  and  took  the  several  oaths 
prescribed  by  law,  and  entered  into  and  acknowledged  a  bond  in 
the  penalty  of  sixty  thousand  dollars  with  (naming  ten  persons) 
his  sureties,  conditioned,  etc.     In  the  absence  of  fraud,  the  re- 


22  Citations  to  the  Code  of  Virginia. 

cord  is  conclusive  that  the  bond  was  properly  executed  by  the 
parties  whose  names  are  to  it." 

Upon  issue  on  the  plea  of  non  est  factum,  by  C,  one  of  the 
parties  to  such  bond,  proof  that  his  name  is  not  in  his  hand- 
writing, but  in  that  of  H.,  another  party;  that  C.  was  not  at  the 
court-house  the  day  the  bond  was  taken,  but  was  at  his  home 
ten  miles  off;  that  on  the  day  before  the  bond  was  taken  he 
asked  H.  who  would  sign  it,  and  being  told  that  D.  with  others 
would  sign  it,  he  told  H.  if  D.  signed  it,  H.  might  sign  it  for 
him,  but  D.  did  not  sign  it,  is  not  sufficient  to  outweigh  the 
record  and  sustain  the  defence. 

In  the  case  of  Barnum  vs.  Frost,  17  Grat.,  398,  decided 
April  30,  1867,  it  was  held  (p.  422) :  The  condition  of  the  guar- 
dian's bond  is  to  pay  and  deliver  to  the  ward  her  estate,  when 
thereto  required  by  the  justices.  A  creditor  for  necessaries 
furnished  to  the  ward  may  be  substituted  to  the  rights  of  the 
ward,  upon  the  bond,  against  the  guardian  and  his  sureties,  for 
the  payment  of  her  debt. 

In  the  case  of  Dams'  Adm'r.  vs.  Snead  et  als.,  33  Grat.,  705, 
decided  October  14,  1880,  it  was  held  (p.  710) :  Under  this  sec- 
tion a  receiver's  bond  may,  and  ought  to  be  made  payable  to 
the  Commonwealth. 

In  the  case  of  Acker  vs.  J..  (&  F.  Railroad  Co.,  84  Va.,  648, 
decided  March  22,  1888,  it  was  held:  Supersedeas  bond  made 
payable  to  the  Commonwealth  is  sufficient. 

Bond  reciting  the  judgment  as  that  of  "  the  Circuit  Court  of 
Alexandria,"  omitting  the  words,  "  the  city  of,"  is  not  vitiated  by 
such  omission. 

A  bond  not  containing  a  waiver  of  homestead  may  be  insuffi- 
cient, and  may  be  made  sufficient  at  any  time  on  the  motion  of 
the  defendant  in  error,  but  is  not  in  itself  a  void  bond. 

Section  179. 

In  the  case  of  Sayers  vs.  Cassell,  23  Grat.,  525,  decided  June, 
1873,  it  was  held ,  A  guardian  of  an  infant  having,  when  ap- 
pointed, given  a  bond  with  sureties  afterwards  without  a  rule 
upon  him  or  order  of  court  requiring  it,  comes  into  the  court 
and  gives  another  bond  with  other  sureties.  The  last  bond  is 
vahd  and  relates  back  to  his  appointment  as  guardian;  and  the 
sureties  in  the  first  bond  are  discharged ;  and  are  not  necessary- 
or  proper  parties  to  a  bill  by  the  ward  against  the  guardian  and 
hissureties  for  the  settlement  of  his  accounts. 

The  reference  to  32  Grat.,  274-'75,  is  to  the  case  of  Campbell 
vs.  ^mtth,  m  which  this  section  is  not  construed,  but  rules  the 
uecision. 

Section  180. 
In  the  case  of  Sangster  et  als.  vs.  Commonwealth,  17  Grat.,  124, 


Citations  to  the  Code  of  Virginia.  23 

decided  October  29,  1S66,  it  was  held :  A  sheriff  who  takes  the 
property  of  A.  under  an  attachment  against  the  property  of  B., 
thereby  not  only  commits  a  trespass,  but  plainly  violates  the 
duty  of  his  office,  and  breaks  the  condition  of  his  official  bond, 
and  his  sureties  are  liable  for  his  act.  Other  actions  may  be 
maintained  on  an  official  bond,  though  in  a  previous  action 
judgment  has  been  rendered  for  the  penalty,  to  be  discharged 
by  the  payment  of  the  sum  assessed  in  that  action,  and  of  such 
further  sums  as  might  be  afterwards  assessed  or  be  found  due, 
upon  scire  facias  assigning  a  further  breach. 

In  an  action  on  an  official  bond,  the  judgment  is  not  entered 
for  the  penalty  to  be  discharged,  &c.,  but  for  the  sum  assessed 
or  agreed  as  the  damages  in  the  case.  When  this  is  by  agree- 
ment it  is  no  error ;  and  in  any  case  it  is  a  mere  informality  in  the 
entry  of  the  judgment  by  the  clerk,  and  is  not  ground  for  stay- 
ing or  reversing  the  judgment. 

The  reference  to  17  Grat.,  136,  is  to  the  same  case  above 
cited  from  page  124. 

Section  181. 

In  the  case  of  Acker  y?,.  A.  &  F.  Railroad  Co.,  84  Va.,  648, 
decided  March  22,  1888,  it  was  held:  Supersedeas  bond  made 
payable  to  the  Commonwealth  is  sufficient. 

Bond  reciting  the  judgment  as  that  of  the  "  Circuit  Court  of 
Alexandria,"  omitting  the  words  "  the  city  of,"  is  not  vitiated 
by  such  omission. 

A  bond  not  containing  "  a  waiver  of  homestead  "  may  be  in- 
sufficient, and  may  be  made  sufficient  at  any  time  on  motion  of 
the  defendant  in  error,  but  it  is  not  a  void  bond. 


TITLE  VIII. 


In  the  case  of  Loving  et  als.  vs.  Auditor  of  Public  Accounts, 
76  Va.,  942,  decided  December  19,  1882. 

1.  Public  Officers — Compensation.  For  reasons  of  public 
polity,  the  powers  of  the  legislature  to  change  the  compensation 
of  public  officers  is  absolute,  except  so  far  as  it  may  be  limited 
by  the  fundamental  law.  Such  limitation  is  found  in  the  Con- 
stitution of  this  State  as  respects  the  salaries  of  certain  enume- 
rated officers. 

2.  Idem. — Idem. — Sureties.  This  applies  also  to  sureties  on 
official  bonds  of  public  officers.  There  being  no  contract  be- 
tween the  State  and  its  officer  that  during  his  term  his  compen- 
sation shall  not  be  changed,  and  the  power  to  change  it  being 
absolute,  the  sureties  must  be  held  to  have  signed  the  bonds  of 


24  Citations  to  the  Code  of  Virginia. 

the  principal  with  reference  to  the  existence  of  this  power,  and 
their  liabUity  thereon  is  not  affected  by  such  change. 

3  Construction  of  Statute— Countersigning  drafts  if  by 
the  provisions  of  Code  1873,  ch.  206,  §  58,  the  legislature  in- 
tended all  drafts  drawn  by  the  general  agent  of  the  penitentiary 
to  be  certified  by  the  superintendent  and  countersigned  by  the 
governor,  the  failure  to  certify  and  to  countersign  these  drafts 
does  not  affect  the  liability  of  his  sureties  for  money  so  drawn 
and  received  by  him.  These  provisions  are  merely  directory  to 
such  officers,  and  form  no  part  of  the  contract  with  the  sure- 
ties. , 

4.  General  Agent.— Material  furnished.  Where  the  general 
agent  of  the  penitentiarj-  bought  raw  material  for  the  State,  and 
gave  therefor  his  notes  signed  by  himself  with  the  letters  G-  A. 
(meaning  general  agent)  appearing,  but  the  State  assumed  the 
liability  and  paid  the  notes,  the  general  agent  and  his  sureties 
are  entitled  to  no  credit  therefor,  as  for  material  purchased  on 
his  individual  responsibility. 

5.  Idem.— Sureties. — Credits  for  compensation.  The  legisla- 
ture having  reduced  the  general  agent's  compensation,  he  and 
his  sureties  are  entitled  to  credit  for  the  reduced  compensation, 
and  not  for  the  compensation  at  the  rates  allowed  by  the  law  in 
force  at  the  dates  of  the  official  bonds.  But  as  by  act,  which 
became  law  first  July,  1878,  the  legislature  restored  the  com- 
pensation as  allowed  by  Code  1873,  ch.  13,  §  23,  credit  must  be 
allowed  after  that  day  at  the  original  rates. 

6.  Idem.— /<Zem.— Liability.  Code  1873,  ch.  206,  §  57,  pro- 
vides that  the  general  agent  and  his  sureties  shall  be  responsible 
for  the  amount  of  all  debts  for  goods  or  work  contracted  with 
him  or  under  his  authority,  and  for  all  money  received  by  him 
as  such  agent,  except  as  therein  provided.  There  is  no  law 
making  it  a  part  of  his  duty  to  collect  debts  contracted  with  his 
predecessors,  and  moneys  so  collected  are  not  covered  by  his 
bond,  and  not  chargeable  to  his  sureties. 

7.  Idem. — Idem. — Outside  receipts.  Where  money  went  into 
the  agent's  hands  outside  of  his  lawful  duties,  the  sureties  are 
not  chargeable  with  the  same,  e.  g.,  contributions  to  build  a 
chapel  for  convicts. 

8.  Idem. — Idem. — Receipts  in  excess  of  appropriations.  The 
Constitution  (Art.  X.,  §  10)  declares  that  no  money  shall  be  paid 
out  of  the  treasury  except  in  pursuance  of  appropriations  by 
law.  Where  the  general  agent  received  twelve  thousand  five 
hundred  dollars  pursuant  to  appropriations  made  before  or  after 
receipts,  and  five  thousand  dollars  in  excess  of  appropriations, 
the  sureties  are  liable  for  the  first,  but  not  for  the  last  sum. 

In  the  case  of  Holladay  {Judge)  vs.  The  Auditor,  11  Va.,  425, 
decided  April  26,  1883,  it  was  held :  It  has  been  decided  by  this 


Citations  to  the  Code  of  Virginia.  25 

court  {Loving  et  als.  vs.  The  Auditor,  76  Va.  Rep.,  942)  that  the 
services  rendered  by  public  officers  do  not  partake  of  the  nature 
of  contracts,  and  have  no  ajtfinity  thereto. 

In  the  case  of  Frazier  vs.  Virginia  Military  Institute,  81  Ya., 
59,  decided  October  8,  1885,  it  was  held,  p.  62  :  Appointment 
to  ofl&ce  is  not  a  contract,  and  vests  no  rights  in  the  appointee 
to  the  salary  or  emoluments  thereto  attached. 

CHAPTER  14. 

Section  183,  Part  2. 

In  the  case  of  T/ion  vs.  The  Com?nomoealth,  77  Va.,  289,  de- 
cided March  15,  1883,  it  was  held :  Act  approved  March  12, 
1878,  Acts  1877-78,  ch.  183,  sec.  2,  p.  174,  providing  that  the 
attorney-general  shall  receive  a  salary  of  $2,500  annually  for  his 
services,  and  shall  not  be  entitled  to  any  further  compensation 
therefor,  refers  to  salaries  payable  out  of  the  State  treasury,  and 
not  to  fees  taxed  in  the  costs  as  fees  of  attorneys  on  the  win- 
ning side  in  any  case.  The  laws  requiring  such  fees  to  be 
taxed  for  the  Commonwealth  have  never  been  repealed  or 
amended,  and  the  losing  suitor  has  them  to  pay,  whether  they 
go  into  the  State  treasury  or  to  the  attorney-general.  But  the 
laws  requiring  such  fees  to  be  taxed  in  the  costs  and  paid  to 
said  attorney  are  also  unrepealed. 

In  the  case  of  Blair  (Attorney- General)  vs.  Marye  (Auditor), 
80  Va.,  485,  decided  May  7,  1885,  it  was  held :  By  Section  8, 
Article  6,  State  Constitution,  the  election  and  commissioning  of  an 
attorney-general  is  provided  for,  and  it  is  directed  that  he  shall 
perform  such  duties  and  receive  such  compensation  as  the  law 
may  prescribe.  It  is  not  within  the  power  of  the  legislature 
itself  to  withhold  from  him  the  salary  which  is  prescribed  by 
law,  nor  to  delegate  such  power  to  the  auditor.  The  salary  of 
the  attorney-general  is  of  constitutional  grant  and  of  public  offi- 
cial right,  and  the  doctrine  of  offset  cannot  be  applied  to  it.  It 
is  not  liable  to  attachment,  to  garnishment,  nor  to  assignment  in 
bankruptcy,  and  upon  principles  of  public  policy  it  has  absolute 
immunity  from  detention  for  debt  or  counter  claims. 

The  act  of  Assembly  passed  November  24,  1884,  Acts  1884, 
p.  90,  requiring  the  auditor  to  withhold  the  salary  of  any  officer 
who  is  indebted  to  the  State  for  money  collected  by  him,  or  im- 
properly drawn  by  him,  during  his  term  of  office,  until  the  de- 
fault is  made  good,  is  unconstitutional  and  void  so  far  as  it 
affects  constitutional  officers.  The  officer's  remedy  for  the 
withholding  of  the  salary  attached  to  his  office  is  by  mandamus. 

In  the  case  of  Commomcealth  vs.  Field,  84  Va.,  26,  decided 
November  17,  1887,  it  was  held  :  The  attorney-general  is  enti- 
tled to  be  paid  out  of  the  public  treasury,  his  salary  and  no- 


26  Citations  to  the  Code  of  Virginia. 

thing  more.  The  Commonwealth  may  recover  by  an  action 
from  the  attorney-general  fees  paid  him  by  the  auditor  under 
mistake  that  he  was  entitled  thereto  as  part  of  his  compensa- 
tion. 

Section  185,  Part  3. 
In  the  case  of  Holladay  {Judge)  vs.  The  Auditor,  77  Va.,  425,. 
decided  April  26,  1883,  it  was  held :  In  the  sense  of  the  acts- 
approved  April  7,  1870,  May  18,  1870,  and  April  1,  1873,  that 
court  is  a  "city  court."  The  last,  providing  that  the  judges  of 
the  city  and  corporation  courts  of  this  Commonwealth  shall  be 
paid  out  of  the  treasury  of  their  respective  corporations,  is  con- 
stitutional, has  not  been  repealed,  and  applies  to  the  judge  of 
the  Chancery  Court  of  the  city  of  Richmond,  no  part  of  whose 
salary  is  payable  out  of  the  State  treasury. 

Section  192. 

In  the  case  oi Blair  {Attorney-General)  vs.  Marye  {Auditor),  80' 
Va.,  485,  decided  May  7, 1885,  it  was  held  :  By  Section  8,  Article 
6,  State  Constitution,  the  election  and  commissioning  of  an  at- 
torney-general is  provided  for,  and  it  is  directed  that  he  shall 
perform  such  duties  and  receive  such  compensation  as  the  law 
may  prescribe.  It  is  not  within  the  power  of  the  legislature 
itself  to  withhold  from  him  the  salary  which  is  prescribed  by 
law,  nor  to  delegate  such  power  to  the  auditor. 

The  salary  of  the  attorney -general  is  of  constitutional  grant,. 
and  of  public  official  right,  and  the  doctrine  of  offset  cannot  be 
applied  to  it.  It  is  not  liable  to  attachment,  to  garnishment, 
nor  to  assignment  in  bankruptcy,  and  upon  principles  of  public 
pohcy,  it  has  absolute  immunity  from  detention  for  debt  or 
counter  claims. 

The  act  of  assembly  passed  November  24,  1884,  Acts  1884,. 
page  90,  requiring  the  auditor  to  withhold  the  salary  of  any 
officer  who  is  indebted  to  the  State  for  money  collected  by  him, 
or  improperly  drawn  by  him  during  his  term  of  office,  until  the 
default  is  made  good,  is  unconstitutional  and  void,  so  far  as  it 
affects  constitutional  officers.  The  officer's  remedy  for  the  with- 
holding of  the  salary  attached  to  his  office  is  by  mandamus.  . 


TITLE  IX. 

CHAPTER  XV. 

Section  207. 
In  the  case  of   Wolfe  et  als.  vs.  McCauU  {clerk),  d;c.,  76  Va.,. 
876  and  891,  the  legislature  passed  a  bill,  and  presented  it  to- 
the  governor  under  the  Constitution,  Art.  4,  Sec.  8 ;  but  before: 


Citations  to  the  Code  of  Yirginia.  27 

he  acted  it  was  recalled  by  a  joint  resolution.  He  returned  it 
without  approval  or  disapproval.  Held :  The  legislature  had 
no  power  to  recall  the  bill.  The  governor  cannot  return  a  bill 
except  with  his  veto  and  objections.  In  this  case  his  return 
of  the  bill  was  illegal,  and  it  not  having  been  vetoed,  became 
a  law. 

Under  Code,  1873,  Chapter  14,  Section  14,  it  was  the  duty 
of  the  keeper  of  the  rolls  to  have  this  bill  thus  become  a  law, 
printed  and  published  with  the  other  acts  of  the  General  As- 
sembly; and  also,  upon  request,  to  furnish  the  incorporators 
with  a  copy  thereof,  properly  certified. 

The  keeper  of  the  rolls  failing  to  perform  this  duty,  man- 
damus is  the  only  appropriate  remedy,  and  this  court  hath 
jurisdiction  to  award  that  writ  in  such  case. 


TITLE  X. 

CHAPTER  XVI. 

CHAPTER  XVII. 

CHAPTER  XVIII. 

CHAPTER  XIX. 

CHAPTER  XX. 


TITLE  XI. 

CHAPTER  XXI. 


TITLE  XII. 

CHAPTER  XXII. 

Section  399. 

In  the  case  of  Greenhow  {Ti'easurer)  vs.  Vashon,  81  Va.,  336, 
decided  January  14,  1886,  it  was  held:  Section  2  of  act  of 
Assembly,  approved  March  15,  1884,  providing  for  a  separate 
assessment  of  taxes  for  the  support  of  the  public  free  schools, 
and  Section  113,  of  the  same  act,  providing  that  such  taxes  shall 
be  paid  and  collected  only  in  lawful  money  of  the  United  States, 
are  not  repugnant  to  Section  8  of  Article  8  of  the  State's  Consti- 
tution, but  were  enacted  in  obedience  to  its  positive  mandate; 
and  such  taxes  cannot  be  paid  in  the  State's  tax-receivable 
coupons. 

See  Section  406. 


23  Citations  to  the  Code  of  Virginia. 

Section  402. 

In  the  case  of  Commonwealth  vs.  Maury,  82  Va.,  883,  decided 
February  10,  1887,  it  was  held:  This  section  is  not  repugnant 
to  the  United  States  and  the  State  Constitutions  wherein  they 
forbid  the  passage  of  laws  impairing  the  obligation  of  contracts. 

This  case  is  cited  as  from  11  Va.  Law  Journal. 

Section  406. 
The  reference  to  AnioniYS.  Wright  (^Sheriff),  22  Grat.,  833,  is 
not  available  here. 

In  the  case  of  Wise,  Bro.,  die.  (Agents)  vs.  Bogers  [Second 
Atiditor) ;  Maury  (&  Co.  vs.  Rogers  {Second  Auditor),  24  Grat., 
169,  decided  November,  1873,  it  was  held:  The  act  of  March  7, 
1872,  which  repeals  the  act  of  March  30,  1871,  so  far  as  it  au- 
thorizes the  issue  of  coupon  bonds  with  coupons  attached,  re- 
ceivable for  taxes  and  other  dues  of  the  State,  is  constitutional 
so  far  as  it  apphes  to  bonds  not  presented  to  the  Second  Auditor 
before  the  passage  of  the  repealing  act. 

The  reference  to  24  Grat.,  171,  is  to  the  case  above  cited  from 
page  169. 

In  the  case  of  Clarke  vs.  Tyler  {Sergeant),  30  Grat.,  134,  de- 
cided April  4,  1878,  it  was  held :  Fines  imposed  for  a  violation 
of  law  are  embraced  in  the  act  of  1871,  known  as  the  Funding 
Act,  and  a  person  upon  whom  such  a  fine  is  imposed  may  dis- 
charge it  by  the  over-due  coupons  taken  from  the  bonds  men- 
tioned in  said  act. 

In  the  case  of  Williamson  vs.  Massey  {Auditor),  33  Grat.,  237, 
decided  April  29. 1880,  it  was  held :  The  over-due  coupons  upon 
bonds  issued  under  the  act  of  March  28,  1879,  are  receivable 
for  all  taxes  levied  by  the  State,  including  the  capitation  tax, 
and  the  auditor  is  bound  to  receive  them  when  offered  in  pay- 
ment of  taxes  returned  dehnquent  to  his  office. 

In  the  case  of  Zee  vs.  Harlow,  Va.  Keports,  75,  22,  decided 
November  14,  1881,  Lee,  holding  coupon  bond  issued  under  the 
act  of  March,  1871,  after  the  passage  of  the  acts  of  March  7  and 
March  19,  1872,  received  from  the  auditor  of  the  State  two- 
thirds  of  the  interest  due  thereon,  which  payment  was  stamped 
upon  the  coupons.  In  1880  he  offered  to  the  collector  of  the 
State  taxes  the  said  coupons  for  one-third  unpaid  thereon,  in 
payment  of  taxes  due  from  him  to  the  State,  held:  Lee  is  enti- 
tled to  pay  his  taxes  due  tlie  State  in  the  unpaid  one-third  of 
said  coupons. 

In  the  case  of  The  Board  of  Public  Works  et  als.  vs.  Gannt 
et^  als.,  76  Va.,  455.  1.  Sovereignty. — It  is  an  established  prin- 
ciple that  a  sovereign  can  not  be  sued  in  its  own  courts,  or  in  any 
other  without  its  permission.  This  principle  applies  to  States 
of  the  Union  (except  as  to  controversies  between  two  or  more 


Citations  to  the  Code  op  Yirginia.  29 

States.  United  States  Constitution,  Art.  3.  Sec.  2,  Clause  1), 
as  well  as  to  the  United  States  Government.  And  it  may  at  any 
time  revoke  such  permission,  even  as  to  antecede  contracts, 
without  impairing  the  obligation  thereof.  See  11  Otto,  338. 
Even  when  judgment  is  rendered  she  may  determine  for  her- 
self whether  she  will  pay  it  or  not.  Though  in  form  the  suit 
be  against  officers  or  agents  of  the  State,  yet  if  in  effect,  it  be. 
against  the  State  itself,  this  principle  applies. 

Idem. — Case  at  bar. — In  February,  1881,  the  Board  of  Pub- 
lic Works  of  Virginia  sold  State's  interest  in  Atlanta,  Missis- 
sippi and  Ohio  Eailroad  for  five  hundred  thousand  dollars.  In 
February,  1892,  legislature  ratified  the  sale  by  act  of  March  5, 
1882.  One  hundred  thousand  dollars  thereof  was  appropriated 
to  Normal  and  Collegiate  Institute  by  act  of  April  21,  1882 ; 
the  Board  of  Public  Works  was  directed  to  pay  this  five  hundred 
thousand  dollars  when  received  into  the  public  treasury.  One 
hundred  thousand  dollars  thereof  to  the  State  Board  of  Education 
for  the  benefit  of  said  institute,  and  the  remainder,  four  hundred 
thousand  dollars,  to  the  credit  of  the  public  school  fund,  subject 
to  the  draft  of  the  State  Board  of  Education.  In  June,  1882, 
G.  and  R.  filed  their  bills  in  the  Circuit  Court  of  Richmond, 
representing  themselves  to  be  creditors  of  the  State,  and  as 
such,  to  be  entitled  to  have  the  said  funds  paid  into  the  public 
treasury  to  the  credit  of  the  sinking  fund.  In  conformity  with 
the  act  of  March  30,  1871,  known  as  the  Funding  Bill,  they 
claim  that  the  acts  of  1882,  appropriating  said  funds  to  educa- 
tional purposes,  are  unconstitutional  and  void,  as  being  in  vio- 
lation of  the  contract  made  with  the  public  creditors  by  said 
Funding  Bill ;  and  prayed  that  the  Board  of  Education  be  re- 
strained from  taking  possession  of  said  funds,  and  that  the  com- 
missioners of  the  sinking  fund  be  decreed  to  take  charge  there- 
of, and  to  purchase  therewith  bonds  issued  under  said  Funding 
Bill.  The  persons  composing  the  Board  of  Education,  the  Board 
of  Public  Works,  the  Board  of  Commissioners  of  the  sinking 
fund,  and  the  Board  of  Visitors  of  Virginia  Normal  Institute, 
as  such  and  individually,  and  others  were  made  defendants,  but 
no  reply  was  asked  against  them  individually,  and  they  had  no 
personal  interest  in  the  question. 

In  the  case  of  Convmonwealth  vs.  II.  M.  Smith,  Jr.,  76  Va., 
477. 

Idem. — A  tax-payer  tendered  coupon  detached  from  bond 
issued  under  Funding  Bill  of  1879,  in  payment  of  his  taxes  to 
the  collector,  who  refused  to  receive  it.  Held :  The  refusal  was 
not  justifiable  under  the  act  of  January  14,  1882,  and  the  tax- 
payer was  entitled  to  a  mandamus  to  compel  the  collector  to  re- 
ceive the  coupon. 

In  the  case  of  Commonwealth  vs.  Guggenhevmer,  78  Va.,  71, 


30  Citations  to  the  Code  of  Virginia. 

decided  November  29,  1883,  it  was  held :  This  applies  not  to 
coupons  detached  from  bonds  issued  under  Funding  Bill  of  1879, 
but  only  to  coupons  detached  from  bonds  issued  under  Funding 
Bill  of  1871. 

In  the  case  of  Taylor  {Acting  Treasurer)  vs.  Williams*!^  Va., 
422,  decided  February  21,  1884,  W.  petitioned  the  Hustings 
Court  of  Richmond  to  verify  certain  coupons,  amounting  to 
$249,  tendered  by  him  in  payment  of  his  license  tax  under  the 
statute.  The  jury  found  the  coupons  genuine,  and  judgment 
was  entered  that  the  facts  be  certified  to  the  treasurer,  and  that 
he  refund  to  W.  the  money  paid  by  him  for  his  taxes.  The 
treasurer  discovered  that  the  coupons  presented  to  him  did  not 
correspond  with  those  for  which  the  judgment  had  been  ren- 
dered, and  refused  payment.  W.  then  obtained  from  said  court 
a  mandamus  to  compel  the  treasurer  to  pay.  The  latter  moved 
to  quash  the  writ  for  irregularities  on  its  face,  demurred,  and 
answered,  objecting  to  the  proceedings  ;  but  the  coiirt  awarded 
a  peremptory  mandatmts,  to  which  respondent  excepted,  and 
obtained  a  writ  of  error.  Held :  The  Circuit  Court  of  Rich- 
mond city  alone  hath  jurisdiction  in  suits  against  State  officers, 
including  the  treasurer.  The  proceedings  should  have  been 
quashed  on  the  treasurer's  motion. 

In  the  case  of  Broum,  Davis  cfe  6'o.  vs.  Greenhow  {Treasurer) ^ 
80  Va.,  118,  decided  January  29,  1885,  it  was  held:  Assumpsit 
against  collecting  officer  is  the  proper  remedy  of  a  tax-payer  to 
recover  money  paid  by  him  for  taxes,  after  collector's  refusal  to 
accept  coupons  tendered  in  payment  thereof,  under  act  ap- 
proved January  26,  1882. 

In  the  declaration  to  special  claims  alleging  the  tender  of  tax 
receivable  coupons  to  pay  the  tax,  and  the  defendants  refusal  to 
accept  the  coupons,,  and  the  latter's  proceeding  to  collect  the 
tax  in  money  when  payment  thereof  was  made  under  pro- 
test, the  common  counts  for  money  had  and  received,  etc.,  may 
be  added. 

The  action  under  this  statute  is  in  form  against  the  collector, 
but  being  to  recover  a  demand  growing  out  of  his  acts  done 
colore  officii  is  substantially  against  the  Commonwealth,  and  the 
judgment  is  likewise. 

In  the  case  of  Bufuwigton  vs.  Ford,  80  Va.,  177,  decided 
February  5,  1885,  it  was  held :  The  State  can  only  be  sued  by 
its  consent.  When  a  remedy  by  suit  against  the  State,  or  any 
of  its  officials  IS  provided,  those  seeking  to  avail  of  its  benefits 
must  follow  its  provisions  with  exact  strictness. 

Under  act  of  January  26, 1882,  amended  March  13, 1884,  page 
o27  the  suit  IS  required  to  be  commenced  by  a  petition  to  be 
Wed  at  rules,  upon  which  a  summons  shall  be  issued  to  the  col- 
lecting officer  and  regularly  matured  like  any  other  action  at 


Citations  to  the  Code  of  Virginia.  31 

law,  and  the  coupons  tendered  shall  be  filed  with  the  petition. 
A  suit  brought  in  any  other  way  is  unlawfully  instituted,  and 
must  be  dismissed. 

In  the  case  of  Greenhow  {Treasurer)  vs.  Yashon,  81  Va.,  336, 
decided  January  14,  1886,  it  was  held :.  Section  2  of  act  of  As- 
sembly, approved  March  15,  1884,  providing  for  a  separate  as- 
sessment of  taxes  for  the  support  of  the  public  free  schools,  and. 
Section  113  of  the  same  act,  providing  that  such  taxes  shall  be 
paid  and  collected  in  lawful  money  of  the  United  States  only,  are 
not  repugnant  to  Section  8  of  Article  8  of  the  State  Constitution, 
but  were  enacted  in  obedience  to  its  positive  mandate ;  and  such 
taxes  cannot  be  paid  in  the  State's  tax-receivable  coupons. 

Section  408. 

In  the  case  of  Brown,  Davis  &  Co.  vs.  Greenhow  {Treasurer), 
80  Va.,  118,  decided  January  29,  1885,  it  was  held:  Assumpsit 
against  collecting  officer  is  the  proper  remedy  of  a  tax-payer  to 
recover  money  paid  by  him  for  taxes,  after  collector's  refusal  to 
collect  coupons  tendered  in  payment  thereof,  under  act  approved 
January  26,  1882. 

In  the  declaration  to  special  claims  alleging  the  tender  of 
tax-receivable  coupons  to  pay  the  tax,  and  the  defendants  re- 
fusal to  accept  the  coupons,  and  the  latter's  proceeding  to  col- 
lect the  tax  in  money  when  payment  thereof  was  made  under 
protest,  the  common  counts  for  money  had  and  received,  etc., 
may  be  added. 

The  action  under  this  statute  is  in  form  against  the  collector, 
but  being  to  recover  a  demand  growing  out  of  his  acts  done 
colore  officii  is  substantially  against  the  Commonwealth,  and  the 
judgment  is  likewise. 

In  the  case  of  Dunnington  vs.  Ford,  80  Va.,  177,  decided 
February  5,  1885,  it  was  held :  The  State  can  only  be  sued  by 
its  consent.  When  a  remedy  by  suit  against  the  State,  or  any 
of  its  officials  is  provided,  those  seeking  to  avail  of  its  benefits 
must  follow  its  provisions  with  exact  strictness. 

Under  act  of  January  26,  1882,  amended  March  13,  1884, 
page  527,  the  suit  is  required  to  be  commenced  by  a  petition  to 
be  filed  at  rules,  upon  which  a  summons  shall  be  issued  to  the 
collecting  officer  and  regularly  matured  like  any  other  action  at 
law,  and  the  coupons  tendered  shall  be  filed  with  the  petition. 
A  suit  brought  in  any  other  way  is  unlawfully  instituted,  and 
must  be  dismissed. 

In  the  case  of  Yaslion  vs.  Greenhow,  135  U.  S.  S.  C.  Keports, 
664,  decided  October,  1889,  it  was  held :  The  statute  of  Vir- 
ginia requiring  the  school  tax  to  be  paid  in  lawful  money  of  the 
United  States  was  valid,  notwithstanding  the  provision  of  the 
act  of  1871,  and  was  not  repugnant  to  the  Constitution  of  the 
United  States. 


32  Citations  to  the  Code  of  Vibginia. 

Section  409. 
For  reference  to  78  Va.  71,  see  ante  section  406. 

Section  410. 
In  the  case  of  Mallan  Bros.  vs.  Bransford  (Treasurer),  86  Va., 
675,  decided  March  20,  1890,  it  was  held :  Where  tax-payers, 
under  protest,  pay  taxes  to  tax  collector,  who,  under  this  sec- 
tion, pays  the  money  over  into  the  treasury,  an  action  of 
assumpsit  for  money  had  and  received  will  not  lie  to  recover  the 

money. 

Section  411. 

See  Mallan  Bros.  vs.  Bransford  {Treasurer),  86  Va.,  675,  cited 
supra,  Section  410. . 

Section  412. 

In  the  case  of  Commonwealth  vs.  Weller,  82  Va.,  721,  decided 
January  11,  1887,  it  was  held :  This  section  is  not  repugnant  to 
Ai-t.  1,  Sec.  10,  United  States  Constitution.  This  is  the  case  re- 
ferred to  in  11  Va.  Law  Journal,  166. 

The  case  of  Cornwall  vs.  Commonwealth,  82  Va.,  644,  and  11 
Va.  Law  Journal,  90,  decided  December  9,  1886,  affirms  and 
follows  the  case  of  Commonwealth  vs.  Weller,  above  cited. 

In  the  case  of  Neviton  vs.  Commonwealth,  82  Va.,  647,  de- 
cided December  9,  1886,  it  was  held  :  It  is  the  province  of  the 
law-making  power  of  the  State  to  prescribe  rules  of  evidence  to 
govern  the  procedure  in  her  own  courts.  The  United  States- 
Constitution  has  no  application  to  the  subject.  This  is  the  same 
case  referred  to  in  11  Va.  Law  Journal,  93. 

In  the  case  of  Comm,onwealth  vs.  Hurt,  85  Va.,  918,  decided 
March  21,  1889,  it  was  held  :  When  a  paper,  purporting  to  be  a 
coupon  cut  from  a  State  bond,  is  offered  in  evidence,  the  burden 
of  proof  is  on  the  party  offering  it.  The  contestant  of  its  gen- 
uineness may  demand  the  production  of  the  bond  as  a  condition 
precedent  to  his  right  to  recover,  and  the  question  may  be 
raised  without  plea  of  non  est  factum. 

In  the  case  of  The  Commonwealth  vs.  Ford  {Trustee),  89  Va., 
427,  decided  December  1,  1892,  it  was  held  :  The  Code,  Section 
412,  so  far  as  it  requires  the  production  into  court  of  the  State 
bonds,  does  not  apply  where  bonds  have  been  surrendered  to 
the  Commonwealth  under  the  refunding  act  of  February  20, 
1892. 

In  the  case  of  Commommalth  vs.  Dunlop,  89  Va.,  431,  de- 
cided December  1,  1892,  it  was  held :  Under  the  Code,  Section 
412,  the  burden  of  disproving  the  genuineness  of  the  bonds  of 
the  State  is  upon  the  Commonwealth.  When  the  sovereign 
consents  to  be  sued,  the  terms  and  conditions  upon  which  con- 
sent is  given  must  be  observed,  and  the  tax-payer  whose  tender 
of  coupons  is  refused,  and  who  brings  his  suit,  must,  as  required 


L 


Citations  to  the  Code  of  Virginia.  33 

by  those  conditions,  produce  at  the  trial  the  bonds  from  which 
the  coupons  were  cut. 

Section  414. 

In  the  case  of  Taylor  {Acting  Treasurer')  vs.  Williams,  78  Va., 
422,  decided  February  21,  1884,  it  was  held  (p.  427)  :  The 
statute  expressly  confers  the  right  of  appeal  to  this  court  from 
all  judgments  in  all  proceedings  of  mandamus  rendered  in  the 
inferior  courts. 

In  the  case  of  Mcintosh  {Treasurer)  vs.  Braden  et  als.,  Dun- 
ingto7i  {Treasure)^  vs.  Hurt  et  als.,  The  Commonwealth  vs.  Con- 
sani  et  als.,  80  Va.,  217,  decided  Febniary  5,  1885,  it  was  held  : 
Act  of  March  12,  1884,  is  unconstitutional  so  far  as  it  confers 
upon  this  court  jurisdiction  in  all  cases  of  coupons  arising  un- 
der act  of  January  14,  1882,  without  regard  to  the  amount  in 
controversy,  being  in  conflict  with  Article  6  of  the  State  Con- 
stitution, fixing  minimum  jurisdictional  amount  in  cases  purely 
pecuniary  at  $500. 

Section  418. 

In  the  case  of  Kendall  Banknote  Co.  vs.  Com-tnissioners  of 
the  Shiking  Fund,  79  Va.,  563,  decided  November  20,  1884,  it 
was  held  :  When  a  State  board  is  authorized  to  cause  the  execu- 
tion of  a  work,  and  makes  a  contract  therefor,  such  contract  is 
bihding  on  the  State.  The  rights  of  contracting  parties  under  it 
are  the  same  as  in  other  cases  of  the  like  kind,  and  the  measure 
of  damages  for  the  breach  of  such  contract  is  regulated  by  the 
settled  rule  on  the  subject,  viz.,  that  the  plaintiff  should  have  a 
fair  compensation  for  all  labor  done,  materials  furnished,  and 
expenses  incurred,  together  with  such  profits  as  he  was  likely  to 
have  realized  as  the  direct  and  immediate  fruit  of  the  contract 
had  it  been  fulfilled. 

Section  434. 

In  the  case  of  Arents  vs.  The  Comm,onwealth,  18  Grat.,  750, 
decided  April,  1868,  it  was  held ':  Coupons  stolen  after  the 
day  when  they  had  become  due  and  payable,  though  afterwards 
come  into  the  hands  of  a  ho7ia  fide  holder  for  value,  cannot  be 
held  by  him  against  the  rightful  owner. 

In  the  case  of  Branch  vs.  Commissioners  of  Sinking  Fund,  80 
Va.,  427,  decided  April  9,  1885,  note,  payable  to  bearer,  has 
been  delivered,  stolen  from  the  owner,  and  come  to  ho7ia  fide 
holder  for  value.  Latter  may  recover  on  it  against  the  maker, 
Secus,  where  the  note  has  not  been  delivered,  or,  if  delivered, 
has  been  returned  to  maker,  and  stolen  from  him. 

Two  coupon  bonds  issued  by  the  State  of  Virginia,  payable 
to  bearer,  are  redeemed  by  the  State,  and  other  bonds  issued  in 
their  stead.  Later  the  bonds  were  stolen  from  the  State  trea- 
sury, came  into  the  hands  of  B.,  a  hona  fide  holder  for  value 
3 


34  Citations  to  the  Code  of  Virginia. 

without  notice  of  the  theft,  and  by  B.  were  presented  to  the 
Commissioners  of  the  Sinking  Fund,  to  be  funded  into  other 
bonds  of  the  State.  The  commissioners  refused,  on  the  ground 
that  the  bonds  had  been  stolen  from  the  State  treasury.  B.  ap- 
plied for  a  mandamus.     Held  :  Mandamus  denied. 


TITLE  XIII. 

CHAPTEE  XXIII. 
CHAPTEE   XXIV. 

Section  457. 

In  the  case  of  City  of  Petersburg  vs.  Petersburg  Benevolent 
Mechanics  Association,  78  Va.,  431,  decided  February  28,  1884, 
it  was  held :  This  section,  exempting  from  taxation  property 
owned  by  benevolent  associations,  is  valid  under  Article  10,  Sec- 
tion 3,  of  the  State  Constitution.  The  power  of  the  legislature 
to  exempt  from  taxation  is  absolute,  but  taxation  is  the  rule,  ex- 
emption the  exception,  and  the  intent  of  the  legislature  must  be 
clear. 

The  grant  of  power  to  exempt  from  taxation  all  property  used 
for  benevolent  purposes,  carries  with  it  the  power  to  exempt 
property,  the  proceeds  whereof  are  used  for  benevolent  purposes. 

Where  the  revenues  of  an  association  are  applied  wholly  to 
paying  its  current  expenses,  the  assistance  of  its  indigent  mem- 
bers, and  the  families  of  such  as  have  died  in  need ;  these  are 
charitable  purposes,  and  it  is  not  essential  that  they  shall  be  uni- 
versal. This  section  is  intended  to  include  for  taxation  pro- 
perty of  such  associations  used  for  any  private  purpose,  or  for 
profit,  "  and  to  exempt  such  property  to  the  extent  its  proceeds 
are  used  for  charitable  purposes." 

In  the  case  of  Black  vs.  Sherwood,  84  Va.,  906,  decided  May 
10,  1888,  it  was  held :  A  lot  in  the  city  of  Norfolk,  owned  and 
used  by  the  county  of  Elizabeth  City  and  city  of  Portsmouth 
as  a  landing  for  a  ferry  maintained  by  them,  is  exempt  from 
taxation. 

Section  472 
The  reference  to  28  Grat.,  129,  is  an  error.     This  section  is 
referred  to  in  them,  but  it  has  no  influence  on  the  decision,  nor 
is  it  construed  by  the  decision. 

Section  485. 
The  reference  to  29  Grat.,  129,  is  an  error.     This  section  is 
there  referred  to  in  a  mere  obiter  dictum,  it  has  no  effect  on  the 
decision,  nor  does  the  decision  construe  the  statute. 


Citations  to  the  Coae  of  Virginia.  35 

Section  489. 

In  the  ease  of  State  Banh  of  Yirginia  vs.  City  of  Richmond, 
79  Va.,  113,  decided  May  7,  1884,  it  was  held:  The  capital 
stock  and  shares  of  the  capital  stock  are  distinct  things.  Both 
may  be  taxed,  and  it  is  not  double  taxation. 

When  ordinance  directs  assessment  of  tax  "  on  all  personal 
property,  money  and  credits,  including  all  capital  stock,"  etc., 
the  valuation  of  the  personal  property  of  a  bank  is  rightly  ascer- 
tained by  adding  to  the  paid-up  capital  the  demand  notes  of  the 
stockholders  given  for  unpaid-up  capital  stock,  drawing  interest, 
and  held  by  the  bank. 

Domicil  of  holder  of  evidence  of  debt  is  the  situs  of  the  debt 
for  taxation  purposes.  Notes  held  by  a  bank  located  in  a  city 
are  taxable  b}-  said  city,  wherever  the  makers  may  reside, 
whether  in  or  out  of  the  city,  or  in  or  out  of  the  State. 

Where  tax  has  been  lawfully  assessed,  and  is  not  paid  when 
due,  of  course  the  penalty  imposed  by  the  ordinance  for  non- 
payment of  the  tax  may  rightly  be  enforced. 

Section  534. 

In  the  case  of  'Whitlock  vs.  The  CorMnonwealth,  89  Ya.,  337, 
decided  September  22,  1892,  it  was  held :  It  is  immaterial  that 
indictment  charging  a  person  with  practicing  as  a  physician 
without  license  failed  to  charge  that  he  did  so  for  compensation, 
under  Code,  Section  534. 

Where  in  such  prosecution  the  court  instructs  the  jury  that 
the  case  is  governed  by  Code,  Section  574,  and  the  jury  assesses 
the  fine  at  thirty  dollars  only,  held:  The  instruction  though 
■erroneous  does  not  prejudice  the  defendant. 

Section  535. 

In  the  case  of  Covinionwealth  vs.  Jones,  82  Va.,  789,  decided 
January  20,  1887,  it  was  held :  This  section  is  not  repugnant  to 
Ai-ticle  1,  Section  10,  United  States'  Constitution. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  152. 

Section  555. 
In  the  case  of  Roche  vs.  Jones  {Sergeant),  87  Va.,  484,  decided 
March  5,  1891,  it  was  held:  This  section  held  to  apply  only  to 
State,  and  not  to  municipal  licenses,  which  may  be  prescribed 
to  expire  Jime  30tli  instead  of  April  30th  of  each  year. 

Section  574. 
In  the  case  of  ITarris  vs.   The  Commonwealth,  81  Va.,  240, 
decided  December  17,  1885.     Skating  rinks  aire  not  enumerated 
in  the  act  of  requiring  license  to  be  taken  out  for  public  per- 
formances or  exhibitions,  and  unless  they  be  conducted  so  as  to 


36  Citations  to  the  Code  of  Virginia. 

be  clearlj  shown  that  they  are  properly  public  performances  or 
exhibitions,  they  cannot  be  brought  within  that  act. 

Where  accused  kept  a  skating  rink  ordinarily  visited  by  per- 
sons for  the  purpose  of  skating,  and  took  out  no  license,  except 
when  he  gave  perfomance  by  professional  skaters,  and  ordina- 
rily charged  ten  cents  for  admission,  and  ten  cents  more  for  use 
of  skates,  and  some  visitors  skated,  whilst  others  did  not.  Held : 
The  case  does  not  clearly  come  within  the  statute  requiring 

license. 

Section  579. 

In  the  case  of  Leighton  vs.  Maury,  76  Va.,  865.  The  object 
of  the  statute,  acts  1879-'80,  p.  148,  was  to  depart  from  the 
former  laws  on  the  subject  of  licenses  to  sell  ardent  spirits  as 
construed  by  this  court  in  Yeager's  case,  11  Grat.,  655,  where  it 
was  held  that  the  county  courts  had  unlimited  discretion  on  the 
subject,  and  that  their  decisions  were  not  liable  to  review  by 
any  appellate  tribunal.  The  present  statute  is  mandatory,  and 
the  right  of  appeal  to  the  circuit  court  absolute.  The  appeal 
is  a  transfer  of  the  case  to  the  circuit  court,  where  it  is  heard 
de  novo. 

1.  The  statute  says  the  county  court  "shall  grant  the  license  " 
if  the  applicant  brings  himself  within  the  requirements,  and 
that  the  circuit  court  "may  grant  the  hcense."  The  words 
"may  grant  the  Ucense,"  mean  the  circuit  shall  have  the  juris- 
diction to  do  so,  and  must  do  so,  if  the  applicant  brings  himself 
within  the  requirement,  and  they  confer  no  arbitrary  discretion, 
but  a  sound,  judicial  discretion,  subject  to  review  as  in  other 
cases  provided  by  Code  1873,  page  1136,  Sections  2  and  3. 

2.  The  word  "may"  is  sometimes  construed  as  mandatory  and 
sometimes  as  permissive,  as  will  best  carry  into  effect  the  true 
intent  and  object  of  the  legislature. 

3.  Idem. — Idem. — Case  at  bar. — Circuit  court  certifies  it  is 
not  "  fully  satisfied  that  the  place  is  suitable  for  a  bar-room  and 
for  retail  of  ardent  spirits."  The  county  court  certified  the 
same.  The  testimony  is  conflicting.  It  is  contended,  on  the 
one  hand,  that  the  sale  of  ardent  spirits  at  the  proposed  place 
will  injure  the  large  and  precarious  business  of  making  charcoal 
iron  in  the  vicinity,  and  so  detriment  the  community.  On  the 
other  hand,  it  is  answered  that  "the  legislature  has  adopted  the 
system  of  licensed  sales  of  liquor  throughout  the  State,"  and 
that  this  policy  ought  not  to  be  defeated  by  the  personal  objec- 
tions and  private  views  of  individuals,  however  extensive  and 
important  their  interests  and  business  may  be.     Held  : 

1.  In  deciding  this  question,  all  the  circumstances,  whether 
of  a  general  or  limited  nature,  may  be  taken  into  consideration. 
Lewis  vs.  Washington,  5  Grat.,  275. 

2.  Though  the  primary  object  may  have  been  to  raise  revenue, 


Citations  to  the  Code  op  Vieginia.  37 

this  cannot  be  accomplished  to  the  detriment  of  important  in- 
dustrial enterprises. 

3.  Where  the  testimony  conflicts,  and  in  a  doubtful  case,  the 
appellate  tribunals  will  always  lean  in  favor  of  the  concurring 
judgments  of  the  tribunals  below. 

4.  A  citizen  is  entitled  to  make  himself  a  party  to  the  pro- 
ceedings in  the  county  and  circuit  courts,  and  oppose  the  grant- 
ing of  the  license ;  and  he  can  appear  and  defend  in  this  court, 
and  should  be  served  with  process  upon  appeal,  writ  of  error, 
and  supersedeas. 

5.  In  such  case  such  citizen  renders  himself  liable  to  costs, 
and  may  recover  costs  as  in  other  cases. 

6.  In  the  county  court  no  costs  were  given;  in  the  circuit 
court  costs  were  refused  to  either  party ;  and,  under  all  the  cir- 
cumstances, the  judgment  of  the  county  court  ought  to  be 
affirmed  without  costs  to  either  party. 

In  the  case  of  Ailstock  vs.  Page  et  als.,  11  Va.,  386,  decided 
April  19,  1883.  The  purpose  of  the  legislature  in  framing  the 
act  of  March  3,  1880,  was  to  require  the  county  courts  to  grant 
a  license  to  sell  liquor  to  every  applicant  who  brought  his  case 
within  the  requirements  of  the  law. 

The  purpose  and  eifecL  of  the  change  by  the  legislature,  by  its 
act  of  March  6,  1882,  of  the  word  "shall"  to  the  word  "may," 
was  to  conform  the  act  of  March  3,  1880,  so  amended,  to  the 
law  in  this  respect,  when  the  case  of  French  vs.  Noel,  22  Grat., 
454,  was  decided,  and  to  so  leave  it  discretionary  with. county 
courts  to  grant  or  refuse  such  licenses.  This,  however,  is  a 
sound  legal  discretion,  subject  to  the  appeal  specifically  allowed 
by  the  statute  to  the  applicant. 

Before  these  acts  of  1880  and  1882  there  wias  from  the  deci- 
sions of  county  courts  granting  or  refusing  licenses  to  sell  liquor 
under  Yeager's  Case,  11  Grat.,  655,  and  French  vs.  Noel,  supra, 
no  appeal  allowed  either  applicant  or  contestant.  Those  acts 
give  to  the  applicant  an  appeal  to  the  circuit  court  only.  The 
failure  to  give  the  appeal  to  others  must  be  construed  as  con- 
clusive evidence  of  a  purpose  to  withhold  the  right  of  appeal 
from  all  but  the  applicant,  and  the  contestant  has  no  appeal 
whatever.  So  far  as  this  court,  in  Leightons  Case,  reached  a 
diflerent  conclusion  on  the  question  of  the  right  of  appeal  from 
judgments  of  county  courts  on  applications  for  licenses  to  sell 
liquor,  its  decision  is  overruled. 

A.  applied  to  a  county  court  of  R.  for  license  to  sell  by  retail 
liquor  at  G.  P.  opposed.  By  the  evidence  the  court  was  fully 
satisfied  that  A.  brought  this  case  within  the  requirements  of 
the  law,  and  granted  the  license.  P.  excepted.  The  court  cer- 
tified the  evidence.  P.  obtained  from  the  circuit  judge  a  writ 
of  error  and  supersedeas.     On  petition  of  A.  to  this  court  for  a 


38  Citations  to  the  Code  of  Virginia. 

writ  of  prohibition  to  the  circuit  court — Held :  The  circuit  court 
has  no  jurisdiction  to  award  a  writ  of  error  and  supersedeas  in 
this  case.  The  writ  of  prohibition  must  ba  awarded,  so  that  the 
judgment  of  the  county  court  will  remain  as  if  no  writ  of  error 
and  supersedeas  had  been  awarded. 

In  the  case  of  Ex  parte  Lester,  Ex  parte  Stone,  Ex  parte  Wil- 
8071,  11  Va.,  663,  decided  September  20,  1883,  act  of  March  6, 
1882,  amending  act  of  March  3,  1880,  and  substituting  "  may  " 
for  "shall"  was  not  designed  to  remit  applications  to  sell  liquor 
to  the  court's  arbitrary  discretion.  The  words  "may  grant  the 
license  "  mean  the  court  must  grant  it  in  a  proper  case. 

Where  statute  declares  a  court  may  do  a  judicial  act,  the  word 
"may"  must  be  construed  as  mandatory  when  a  proper  occasion 
for  doing  the  act  arises.  To  applicant  denied  liquor  license,  by 
the  act  of  March  6,  1882,  there  is  given  an  appeal  of  right  to 
the  circuit  court.  Under  Code  1873,  ch.  178,  section  2,  he  may, 
upon  the  bill  of  exceptions  taken  at  the  trial,  apply  to  the  circuit 
court  for  a  writ  of  error  and  supersedeas.  Of  his  two  remedies 
he  may  resort  to  either,  and  if  the  circuit  court  also  erroneously 
refuse  the  hcense;  its  decision  is  reviewable  by  the  court  upon 
(appeal,  or  writ  of  error  and  supersedeas  as  in  other  cases. 

The  applicant  is  a  party  directly  in  interest  in  the  decision 
refusing  the  license,  and  comes  within  the  letter,  Code  1873,  ch. 
178,  section  2.     Not  so  with  contestant. 

Ex  parte  Yeager,  11  Grat.,  655,  was  founded  on  the  law  of 
1849,  which  gave  county  courts  arbitrarv  discretion  as  to  liquor 
licenses;  French  vs.  Mel,  22  Grat.,  454,  on  law  of  1870,  was 
based  on  the  same  ground;  Leighton  vs.  Maury,  76  Va.,  865,  on 
the  law  of  1880,  construing  the  law  as  giving  those  courts  a 
legal  discretion  reviewable  upon  appeal  or  error  upon  petition 
of  either  applicant  or  contestant ;  Ailstock  vs.  Page,  ante  page 
386,  on  law  of  1880,  amended  by  act  of  March  6, 1882,  overi'ules 
Leighton  vs.  Maury  so  far  as  the  latter  allows  right  of  appeal 
or  error  to  the  contestant,  but  decides  nothing  concerning  the 
apphcant.     Ailstock  vs.  Page  et  als.,  explained  and  approved. 

L.  apphed  to  County  Court  of  M.  for  license  to  sell  liquor. 
It  was  refused,  and  applicant  excepted.  The  court  certified  that 
the  apphcant  proved  that  he  was  a  fit  person,  and  that  his  place 
of  business  was  suitable.  L.  applied  to  the  circuit  court  for  a 
wnt  of  error.  He  denied  the  writ  of  error,  and  endorsed  the 
petition  as  follows :  "  The  words  of  the  statute  (1882)  only  appeal 
to  an  apphcant,  and  only  allow  him  right  of  appeal  during  the 
term  at  which  the  refusal  to  allow  his  application  is  entered.  I 
therefore  decline  to  grant  as  asked  for  in  the  petition."  Held : 
(by  a  majority  of  the  court). 

1.  The  applicant  brought  himself  within  the  requirements  of 
the  law,  and  was  entitled  to  the  license  applied  for. 


b 


Citations  to  the  Code  of  Virginia.  39 

2.  The  right  of  appeal  upon  errors  to  the  circuit  court  was 
not  taken  away  by  the  statute,  and  the  applicant  was  entitled, 
upon  the  facts  manifested  by  the  record,  to  have  the  judgment 
refusing  him  the  license  reviewed  and  reversed  by  the  circuit 
court.  Held :  (by  Lewis  P.  and  Hinton  J.)  From  the  judgment 
of  the  county  court  refusing  license  under  the  act  of  March  3, 
1880,  amended  by  the  act  of  March  6, 1882,  the  applicant  is  en- 
titled, during  the  term  at  which  the  refusal  is  entered,  to  take  an 
appeal  of  right  to  the  circuit  court,  and  no  further,  and  such  ap- 
peal is  his  only  remedy.  The  reference  to  page  677  is  to  this 
case. 

In  the  case  of  Cormnonvjealth  vs.  Sheckels,  78  Va.,  36,  decided 
November  15,  1883,  it  was  held:  Liquor  cannot  without  license 
obtained  in  accordance  with  the  laws  of  this  State  be  lawfully 
sold  therein,  either  on  land  or  on  board  of  a  vessel,  although  the 
seller  may  have  obtained  from  the  United  States  Government  a 
special  tax  stamp  therefor,  it  being  expressly  provided  by  Sec- 
tion 3243  of  the  United  States  Revised  Statutes,  that  persons 
holding  such  stamps  shall  not  be  exempted  from  any  penal- 
ties imposed  by  the  law  of  any  State  for  carrying  on  the  trade 
within  its  limits. 

In  the  case  of  Cherry  vs.  Commonwealth,  78  Ya.,.  375,  de- 
cided January  31,  1884,  it  was  held :  It  was  not  the  intention  of 
the  legislature  to  require,  in  proceedings  under  Section  106, 
Chapter  206,  Acts  of  Assembly,  1874-5,  page  244,  the  applica- 
tion of  the  strict  and  technical  rules  applicable  to  indictments. 

In  proceedings  to  revoke  liquor  licenses  under  said  section, 
the  defendants  are  competent  to  testify  in  their  own  behalf, 
those  proceedings  being  not  criminal  in  their  nature.  Those 
proceedings  may  be  on  the  motion  of  any  other  person  as  well 
as  the  commonwealth's  attorney.  In  such  proceedings  the  de- 
fendant is  not  entitled  to  a  trial  by  jury.  The  object  is  not 
punishment,  but  revocation  of  privilege.  It  is  no  bar  to  the 
proceedings  that  it  is  founded  on  some  act  or  offence  wherefor 
the  defendant  has  been  formerly  convicted. 

In  the  case  of  Iladdox  vs.  County  of  Clarhe,  79  Ya.,  677,  de- 
cided October  2, 1884,  it  was  held :  Where  application  for  liquor 
license  is  refused  by  county  court,  and  during  same  time  appli- 
cant a])peals  to  circuit  judge  or  court  (not  upon  bills  of  excep- 
tions to  rulings  of  county  court),  the  appeal  is  but  a  transfer 
of  the  application  to  another  tribunal,  when  it  is  heard  de  novo. 

In  the  case  of  J  [arris  vs.  The  Commomoealth,  81  Ya.,  240,  de- 
cided December  17, 1885,  it  was  held :  Though  prosecution  be  on  a 
revenue  law,  yet  so  far  as  that  law  imposes  penalty,  it  is  a  penal 
statute,  and  must  be  construed  strictly  like  other  criminal  laws. 

Skating-rinks  are  not  enumerated  in  the  act  requiring  license 
to  be  taken   out  for  public  performances  or  exhibitions,  and 


40  Citations  to  the  Code  of  Virginia. 

unless  they  be  properly  conducted,  so  as  to  clearly  show  that 
they  are  properly  public  performances  or  exhibitions,  they  can- 
not be  brought  within  that  act. 

In  the  case  of  Arrhiffton  vs.  Commomoealth,  87  Va.,  96,  de- 
cided November  20,  1890,  it  was  held :  Indictment  under  this 
section,  for  selling  Uquor  without  license,  must  definitely  state 
the  place  where  sold,  but  the  exact  time  of  the  sale  need  not  be 
stated,  nor  need  it  be  stated  that  the  sale  was  "by  sample, 
representation,  or  otherwise." 

CHAPTEE  XXV. 

In  the  case  of  Savage  vs.  Commonwealth,  84  Va.,  619,  decided 
March  15,  1888,  it  was  held :  This  chapter  does  not  delegate  a 
portion  of  the  legislative  power  vested  by  the  Constitution  in 
the  General  Assembly,  but  merely  leaves  it  to  the  popular  vote 
to  determine  whether  license  shall  be  granted  or  not,  and  is  not 
unconstitutional. 

Section  581. 

In  the  case  of  Haddox  vs.  TJie  County  of  Clarke,  79  Va.,  677, 
decided  October  2,  1884,  it  was  held :  Where  a  question  is  sub- 
mitted to  the  qualified  voters  of  a  county  and  of  each  magiste- 
rial district,  and  it  is  made  the  duty  of  the  sheriff  of  the  county 
to  post  notices  of  the  election  at  every  voting-place  in  the  county 
within  a  prescribed  period  preceding  the  election ;  the  failure 
to  post  such  notices  invalidates  the  election. 

An  application  for  liquor  license  in  a  county,  when  such  an 
election  has  taken  place,  either  in  the  first  case  before  the  county 
court,  or  in  the  second  place  before  the  circuit  court  or  judge  in 
vacation,  parol  evidence  is  admissible  to  prove  that  notices  of 
the  election  had  not  been  posted,  or  that  any  other  plain  and 
express  provision  of  the  statute  providing  for  the  election  had 
not  been  complied  with. 

Section  587. 
_  In  the  case  of  Savage  vs.  Commonwealth,  84  Va.,  582,  de- 
cided March  8,  1888,  it  was  held :  Under  this  section  it  is  not 
necessary  that  indictment  allege  that  the  magisterial  district 
wherein  the  sale  occurred  voted  against  license,  the  court  tak- 
ing judicial  notice  of  such  vote,  nor  that  the  liquor  sold  was  the 
subject  of  Hcense  before  the  vote  was  taken,  nor  the  time  when 
the  sale  was  made— the  time  of  sale  not  being  of  the  essence  of 
the  offence. 

In  the  case  of  Webster  vs.  Commonwealth,  89  Va.,  154,  decided 
June  23,  1892,  it  was  held :  In  a  county  where  the  local  option 
law  has  been  adopted,  the  sale  of  liquor  without  license  is 
none  the  less  Hable  to  prosecution  as  a  violation  of  the  general 
revenue  law. 


Citations  to  the  Code  of  Virginia.  41 

CHAPTER  XXVI. 

Section  590. 

In  the  case  of  Lucas  {Sergeant),  etc.  vs.  Claffiin  (&  Co.,  76  Va., 
269. 

Tax  on  deeds. — Code  of  1873,  Chap.  36,  Sec.  11,  provides 
that  "no  deed  shall  be  admitted  to  record  until  the  tax  is  paid 
thereon."  This  is  directory.  Clerk  may  refuse  to  admit  the 
deed  to  record  until  the  tax  is  paid.  But  if  he  chooses  to  admit 
it  without  pre-payment,  he  assumes  the  tax,  and  the  admission  to 
record  is  valid.  Hill  vs.  Rixey,  26  Grat.,  page  80,  distinguished 
from  this  case. 

The  reference  to  76  Va.,  281,  is  to  the  same  case  above  cited 
from  page  269. 

CHAPTER  XXVII. 

Section  619. 
In  the  case  of  Allen  vs.  Co7nmonwealth,  11  Va.  Law  Journal, 
559,  decided  April  7,  1887,  it  was  held :  The  auditor  and  his 
sureties  are  liable  to  the  State  for  the  amount  paid  by  him  to 
the  county  treasurer  for  collecting  taxes  due  the  State  over  and 
above  the  commission  of  two  and  a  half  per  cent,  allowed  by 
law. 

CHAPTER  XXVIII. 

Section  635. 
In  the  case  of  Staats  vs.  Board,  10  Grat.,  400,  decided  July, 
1853,  it  was  held  :  Lands  having  been  forfeited  under  the  act  of 
the  27th  of  February,  1835  (Session  Acts,  p.  11),  for  the  failure 
to  enter  them  on  the  commissioner's  books,  that  forfeiture  was 
complete  on  the  1st  of  November,  1836,  the  period  limited  in 
which  the  forfeiture  might  be  saved  by  complying  with  the  pro- 
visions on  the  act  of  March  23,  1836  (Session  Acts,  1835-'36, 
p.  7).  The  act  of  March  30,  1837  (Session  Acts,  p.  9),  giving 
time  for  redemption  until  the  15th  of  January,  1838,  did  not  re- 
lease the  forfeiture  which  had  accrued,  except  in  cases  where 
the  owner  or  proprietor  availed  himself  of  the  privilege  of  re- 
demption. The  forfeiture  in  such  case  became  absolute  and 
complete  by  the  failure  to  enter  and  pay  the  taxes  due  on  the 
land  and  the  damages  in  the  manner  prescribed  by  the  act  on 
the  27th  of  February,  1835  ;  and  no  inquisition  or  judicial  pro- 
ceeding, or  inquest,  or  finding  of  any  kind  was  required  to  con- 
summate such  forfeiture.  After  the  forfeiture  of  the  land  to  the 
Commonwealth  no  possession  thereof  adverse  to  the  proprietor, 
in  whose  name  it  was  forfeited,  can  run  against  the  Common- 
wealth. Where,  after  the  lien  of  the  Commonwealth  for  taxes 
attaches  to  lands,  any  possession  adverse  to  the  proprietor  can 


42  Citations  to  the  Code  op  VirgiIjia. 

operate  so  as  to  impede  the  right  of  the  Commonwealth  to  sub- 
ject said  lands  to  sale  or  forfeiture  for  such  taxes,  and,  as  a  con- 
sequence, to  transfer  to  a  purchaser,  or  vest  in  actual  occupant^ 
or  subject  to  re-entry  and  grant,  such  forfeited  lands. 

In  the  case  of  ^V^ld's  Lessee  vs.  Serpell,  10  Grat.,  405,  decided 
Jul}',  1853,  it  was  held  :  The  statutes  of  Virginia  forfeiting  lands 
to  the  Commonwealth  for  the  failure  of  the  owners  to  enter 
them  upon  the  commissioners'  books  and  pay  the  taxes  due 
thereon  are  constitutional. 

The  forfeiture,  under  these  statutes,  is  perfected  without  a 
judgment,  decree,  or  other  matter  of  record,  or  an  inquest  of 
office  ;  but  by  the  operation  of  the  statutes  the  title  is  divested 
out  of  the  owner,  and  is  vested  in  the  Commonwealth. 

In  such  cases  where  the  title  is  vested  in  the  Commonwealth 
and  the  forfeiture  enures  to  the  benefit  of  a  third  person  claim- 
ing under  the  Commonwealth  by  virtue  of  another  and  distinct 
right,  the  transfer  of  the  title  to  such  person  is,  in  like  matter, 
perfect  and  complete,  without  any  new  grant  from  the  Common- 
wealth or  any  proceeding  to  manifest  the  transfer  by  matter  of 
record  or  otherwise. 

Land  omitted  to  be  entered  by  the  owner  on  the  commission- 
ers' books  were  forfeited,  under  Section  2  of  the  act  of  February 
27,  1835  (Session  Acts  1834-35,  p.  12),  and  the  forfeiture  be- 
came perfect  and  consummate  on  the  1st  of  November,  1836, 
the  period  limited  in  which  the  forfeiture  may  be  saved  by  com-' 
plying  with  the  provisions  of  the  act  of  March  23,  1836.  (Ses- 
sion Acts,  1835-36,  p.  7.) 

A  party  claiming  under  a  grant  from  the  Commonwealth 
issued  in  August,  1836,  cannot  claim  the  benefit  of  an  older 
title  forfeited  to  the  Commonwealth  under  the  act  of  the  27th 
of  February,  1835,  because  by  that  act  a  forfeiture  only  enured 
to  the  benefit  of  those  who  claimed  title  under  a  gi-ant'from  the 
Commonwealth  bearing  date  before  April  1,  1831.  Nor  can 
such  a  party  sustain  such  a  claim  under  the  provisions  of  the 
act  of  March  30,  1837,  unless  he  is  a  lona  fide  occupant  of  the 
land.  To  sustain  such  a  claim  under  Section  16  of  the  act  of" 
March  16,  1838  (Session  Acts  1837-'38,  p.  21),  the  party  must 
have  been  at  the  date  of  the  act  in  the  actual  possession  and 
occupancy  of  the  land  forfeited  or  parcel  thereof,  with  the  title 
bona  fide  claimed  or  derived  under  grants  from  the  Common- 
wealth which  issued  subsequent  to  the  31st  of  March,  1831,  and 
prior  to  the  15th  of  January,  1838. 

By  the  act  of  March  18,  1841  (Session  Acts  1840-'4l,  p.  31),. 
the  forfeiture  of  title  to  the  Commonwealth  only  enures  to  the 
benefat  of  those  then  in  actual  possession  of  the  forfeited  land 
under  claim  of  title  through  a  grant  from  the  Commonwealth, 
iiiough  at  that  time  the  party  held  a  patent  for  the  land,  yet  if 


CitItions  to  the  Code  of  Virginia.  43 

he  was  in  actual  possession  under  a  lease  from  another  person 
claiming  the  elder  title,  that  is  not  the  actual  possession  con- 
templated by  the  statute. 

By  the  act  of  March  22,  1842  (Session  Acts  1841-42, 
p.  13,  sec.  3),  the  title  to  forfeited  lands  is  transferred  to  and 
vested  in  such  persons  other  than  those  for  whose  default  the 
same  may  have  been  forfeited,  or  has  title  or  claim,  legal  or 
equitable,  derived  under  a  grant  from  the  Commonwealth,  bear- 
ing date  prior  to  the  1st  of  January,  1843,  without  making 
either  actual  occupancy  or  possession  of  the  land,  or  a  hona  fide 
claim  of  title,  any  part  of  the  condition  on  which  the  transfer  of 
the  title  takes  effect.  Though  the  land  had  been  reported  to 
the  court  as  forfeited  land,  and  an  order  had  been  made  for  a 
sale  thereof,  yet  if  not  actually  sold  after  the  passage  of  the  act, 
the  title  is  transferred  under  the  statute. 

The  act  of  March  22,  1842,  is  retrospective  in  its  operation. 
A  tenant  who  renders  possession  at  the  end  of  his  term,  or  from 
whom  possession  is  recovered,  is  not  concluded  by  the  exist- 
ence of  such  tenancy  at  such  time,  or  by  the  deed  of  lease  which 
he  executed,  from  contesting  the  title  of  his  former  landlord. 

Section  642. 

In  the  case  of  Boon  vs.  Simmons,  88  Va.,  259,  decided  July 
9,  1891,  it  was  held :  All  acts  prescribed  by  the  statute  must  be 
performed  in  the  place,  manner,  and  time  therein  named.  Every 
provision  in  which  the  owner  can  possibly  have  an  interest  must 
be  strictly  obeyed,  else  the  tax  title  will  be  void.  The  maxim, 
caveat  emptor,  applies  with  great  force  to  the  purchaser.  Judi- 
cial confirmation  of  the  sale,  when  required  by  law,  is  essential 
to  a  valid  tax  title,  but  no  confirmation  can  aid  a  void  title. 

This  section  provides,  that  within  thirty  days  after  a  tax  sale, 
treasurer  shall  report  same  to  county  court  at  its  next  term, 
which  shall  enter  of  record  the  fact  of  return  of  report,  and 
shall  continue  the  matter  until  the  next  term  for  exceptions  to 
be  filed  by  any  person  affected  thereby ;  and  if  no  cause  be 
shown  to  the  contrary,  the  court  shall  confirm  the  sale,  and 
make  it  binding  upon  the  parties  in  interest,  and  a  writ  of  pos- 
session may  be  granted  to  the  purchaser  at  any  time  thereafter 
on  demand.  A  sale  made  December  19,  1887,  under  said  act 
to  appellant,  was  reported  as  therein  directed,  but  the  county 
court  failed  to  continue  the  matter  to  the  next  term  for  excep- 
tions, and  never  at  that  or  any  other  term  confirmed  the  sale  or 
granted  the  purchaser  a  writ  of  possession,  and  he  never  had 
possession.  Six  months  later  the  same  land  was  sold  under  a 
decree  of  the  circuit  court,  and  the  sale  was  duly  confirmed,  and 
the  purchaser,  the  appellee,  paid  the  entire  purchase- money  and 
received  his  deed  of  conveyance  and  the  possession,  which  he 


44  Citations  to  the  Code  of  VirgI^nia. 

held  for  nearly  two  years  without  notice,  actual  or  constructive, 
of  the  tax  sale.  At  its  January  term,  1890,  the  county  court 
made  an  order  requiring  a  plat  and  certificate  of  survey  of  said 
property  made  by  the  county  surveyor,  and  returned  to  the 
■court  by  the  appellant,  and  reciting  the  purchase  by  the  appel- 
lant of  said  land  at  a  sale  of  lands  delinquent  for  taxes  by  said 
treasurer  as  aforesaid,  to  be  recorded,  and  that  the  clerk  make 
the  necessary  deed  conveying  said  land  to  the  appellant,  which 
deed  was  accordingly  made.  In  a  suit  in  chancery  brought  by 
appellee  to  remove  from  his  title  the  cloud  thereon  occasioned 
by  said  tax  deed,  the  court  adjudged  the  latter  deed  null  and 
void,  which  judgment  was  aflirmed  in  the  appellate  court. 

Section  651. 

The  case  oiHale  vs.  Penn's  heirs,  25  Grat.,  261,  decided  July 
1,  1874,  does  not  construe  the  statute,  but  is  ruled  by  the 
statute. 

Section  653. 

In  the  case  of  Justices  of  Handolph  Co.  vs.  Stnhiaker,  13  Grat., 
523,  decided  September  6,  1856,  it  "was  held :  It  is  the  duty  of 
the  county  court,  acting  in  relation  to  lands  sold  for  taxes,  to 
admit  the  report  of  the  surveyor  to  record,  if  it  conforms  to  the 
act;  and  the  court  has  no  authority  to  inquire  into  the  regu- 
larity or  validity  of  the  sale  made  by  the  sheriff.  The  circuit 
court  may  proceed  by  mandamus  to  compel  the  county  court  to 
admit  the  report  of  the  surveyor  to  record. 

In  the  case  of  Nowlin  vs.  Burwell,  28  Grat.,  883,  decided 
July,  1877.  At  the  August  term,  1874,  of  the  county  court  of 
P.,  N.  presented  a  plat  and  certificate  of  land  assessed  in  the 
name  of  L.  and  sold  in  her  name  in  1860,  by  the  sheriff  of  the 
county  for  the  non-payment  of  taxes  due  thereon,  and  purchased 
by  N.'s  assignor.  B.,  claimant  of  the  legal  title  to  the  land,  op- 
posed the  recording  the  plat  and  certificate,  and  proved  he  had 
paid  to  the  clerk  the  taxes,  etc.,  but  he  offered  no  evidence  of 
his  title.  The  court  admitted  the  plat  and  certificate,  and  B. 
appealed  to  the  circuit  court,  and  that  court  reversed  the  order 
of  the  county  court,  on  the  ground  that  the  county  court  should 
have  admitted  evidence  of  B.'s  title.  On  the  second  trial  in  the 
county  court,  B.  traced  back  his  title  to  a  deed  from  T.,  as  attorney 
m  fact  of  L.  to  S.,  but  the  power  of  attorney  was  not  produced  or 
proven.  The  county  court  sustained  the  claim  of  B.,  and  re- 
scinded its  order,  admitting  the  plat  and  certificate  to  record ; 
and  upon  appeal  by  N.  to  the  circuit  court,  the  last  order  of  the 
county  court  was  affirmed.  Held :  The  first  order  of  the  county 
court  admitting  the  plat  and  certificate  to  record  was  proper. 

It  not  appearing  that  B.  offered  any  evidence  of  -his  title  to 


Citations  to  the  Code  of  Yirginia.  45 

the  land,  it  was  error  in  the  circuit  court  to  reverse  the  order  of 
the  county  court  and  send  the  cause  back  to  let  B.  introduce 
such  evidence. 

B.  not  producing  or  proving  the  power  of  attorney  under  which 
T.  professed  to  act,  he  failed  to  estabhsh  his  title  to  the  land ;  and 
the  second  order  of  the  county  court,  and  order  of  the  circuit 
court  affirming  it,  were  erroneous. 

The  act  Code  of  1873,  ch.  38,  sees.  18  and  19,  in  relation  to 
the  sale  of  land  for  taxes,  is  only  intended  to  furnish  evidence 
of  the  identity  of  the  land  sold,  not  only  for  the  information  of 
the  former  owner  and  all  others  interested,  but  for  the  guidance 
of  the  clerk  in  making  the  deed.  When  the  purchaser  offers  . 
the  plat  and  certificate  for  recordation,  the  sole  duty  of  th^ 
court  is  to  consider  whether  the  plat  and  certificate,  or  the 
report  of  the  surveyor,  as  the  case  may  be,  is  in  conformity  to 
the  requirements  of  the  law  in  respect  to  the  description  and 
identity  of  the  land.  It  is  no  concern  of  the  court  whether  the 
purchaser  has  acquired  the  title  or  whether  the  owner  has  pro- 
perly exercised  his  riglit  of  redemption.  The  proceeding  is  ex 
parte  in  its  character,  and  does  not  in  the  least  effect  the  rights 
of  the  third  person. 

Section  654. 
The  cases  of  Randolph  Justices  vs.  Stalnacker,  13  Grat.,  523, 
and  J^owlin  vs.  Burwell,  28  Grat.,  883,  are  quoted  supra,  Sec- 
tion 653. 

Section  655. 
In  the  case  of  Flanagan  vs.  Crrlmmet  et  ah.,  10  Grat.,  421, 
decided  July,  1853,  the  act  of  February  9,  1814,  2  Rev.  Code, 
542,  concerning  taxes  on  lands,  Sections  24  and  25,  directs  the 
sheriff  to  advertise  the  sale  of  delinquent  lands  at  the  May,  June 
and  July  terms  of  the  court  of  his  county,  and  to  publish  the 
advertisement  at  least  every  week  for  two  months  preceding  the 
time  of  sale  in  some  newspaper  published  in  the  city  of  Rich- 
mond. Section  28  directs  him  to  execute  a  deed  to  the  pur- 
chaser at  such  sale,  reciting  the  circumstances  thereof,  and 
setting  forth  particularly  and  truly  the  amount  of  the  purchase 
money.  Section  38  provides  that  after  the  time  of  redemption 
allowed  has  elapsed,  the  regularity  of  the  proceedings  under 
which  the  purchaser  at  the  sale  claims  title  shall  not  be  ques- 
tioned unless  such  irregularity  appear  on  the  face  of  the  pro- 
ceedings. Held :  That  by  the  circumstances  of  the  sale  which 
are  to  be  recited  in  the  deed,  is  not  meant  all  the  steps  to  be 
taken  by  the  various  officers,  which  preceded  the  sale,  but  the 
circumstances  attending  the  sale  itself,  viz. :  That  the  sale  was 
made  at  the  time  and  place  prescribed  for  the  sale  of  lands  re- 
turned delinquent ;  if  less  than  the  whole  tract  of  land  was  sold,. 


46  Citations  to  the  Code  of  Virginia. 

how  much  was  sold,  who  was  the  purchaser,  and  the  amount  of 
the  purchase  money. 

It  is  not  necessary  that  the  deed  shall  recite  that  the  land 
had  been  advertised.  If  the  deed  recites  that  the  land  was  ad- 
vertised at  the  court-house  door  for  two  months,  but  does  not 
state  that  it  was  at  the  May,  June  and  July  terms  of  the  court 
for  the  county,  or  in  a  Eichmond  paper,  yet  as  it  was  not  neces- 
sary to  recite' in  the  deed  that  the  land  had  been  advertised,  the 
recital  in  the  deed  of  an  insufficient  advertisement  is  not  an 
irregularity  on  the  face  of  the  proceedings,  which  will  avoid  the 

deed. 

The  deed  cannot  be  questioned  by  parol  proof  of  a  failure  to 
advertise  the  sale  as  the  law  prescribes.  If  the  deed  is  defec- 
tive, it  is  competent  evidence  to  show  with  other  evidence  an 
actual  entry  under  a  claim  of  title,  and  continued  holding  there- 
under, so  as  to  make  out  a  title  or  right  of  entry  by  actual 
possession.  Possession  so  taken  and  continued  for  the  time 
prescribed  might  ripen  into  a  right  of  possession,  and  so  bar 
the  right  of  entry  of  the  opposing  party. 

Section  661. 

In  the  case  of  Flanagan  vs.  Grimmet  et  als.,  10  Grat.,  421,  de- 
cided July,  1853,  the  act  of  February  9,  1814,  2  Eev.  Code,  542, 
concerning  taxes  on  lands.  Sections  24  and  25,  directs  the  sheriff 
to  advertise  the  sale  of  delinquent  lands  at  the  May,  June  and 
July  terms  of  the  court  of  his  county,  and  to  publish  the  adver- 
tisement at  least  every  week  for  two  months  preceding  the  time 
of  sale,  in  some  newspaper  pubUshed  in  the  city  of  Richmond. 
Section  28  directs  him  to  execute  a  deed  to  the  purchaser  at 
such  sale,  reciting  the  circumstances  thereof,  and  setting  forth 
particularly  and  truly  the  amount  of  the  purchase  money.  Sec- 
tion 38  provides  that  after  the  time  of  redemption  allowed  has 
elapsed,  the  regularity  of  the  proceedings  under  which  the  pur- 
chaser at  the  sale  claims  title  shall  not  be  questioned,  unless 
such  irregularity  appear  on  the  face  of  the  procedings,  held: 
That  by  the  circumstances  of  the  sale  which  are  to  be  recited  in 
the  deed,  is  not  meant  all  the  steps  to  be  taken  by  the  various 
officers  which  preceded  the  sale,  but  the  circumstances  attend- 
ing the  sale  itself,  viz. :  That  the  sale  was  made  at  the  time  and 
place  prescribed  for  the  sale  of  lands  returned  delinquent;  if 
less  than  the  whole  tract  of  land  was  sold,  how  much  was  sold, 
who  was  the  purchaser  and  the  amount  of  the  purchase  money. 

It  is  not  necessary  that  the  deed  shall  recite  that  the  land  had 
been  advertised.  If  the  deed  recites  that  the  land  was  adver- 
tised at  the  court-house  door  for  two  months,  but  does  not  state 
that  it  was  at  the  May,  June  and  July  terms  of  the  court  for  the 
county,  or  in  a  Richmond  paper,  yet  as  it  was  not  necessary  to 


Citations  to  the  Code  of  Yirginia.  47 

Tecite  in  the  deed  that  the  land  had  been  advertised,  the  recital 
in  the  deed  of  an  insufficient  advertisement  is  not  an  irregularity 
on  the  face  of  the  proceedings,  which  will  avoid  the  deed. 

The  deed  cannot  be  questioned  by  parol  proof  of  a  failure  to 
advertise  the  sale  as  the  law  prescribes.  If  the  deed  is  defec- 
tive, it  is  competent  evidence  to  show,  with  other  evidence,  an 
actual  entry  under  a  claim  of  title,  and  continued  holding  there- 
under, so  as  to  make  out  a  title  or  right  of  entry  by  actual 
possession.  Possession  so  taken  and  continued  for  the  time 
prescribed  might  ripen  into  a  right  of  possession,  and  so  bar  the 
right  of  entry  of  the  opposing  party. 

In  the  case  of  Gates  &  ClarJce  vs.  Lawson  et  als.,  32  Grat.,  12, 
decided  July,  1879.  By  deed  dated  the  16th  of  February,  1864, 
T.  sold  and  conveyed  to  R.  a  tract  of  land  in  Patrick  county,  but 
the  deed  was  not  recorded  in  that  county  until  1874,  though  R. 
paid  the  taxes  on  the  land  from  1866  inclusive.  This  land, 
staanding  on  the  land  books  of  the  county  in  the  name  of  T.,  was 
returned  as  delinquent  for  the  tax  of  1865,  and  in  1873  sold  as 
delinquent  land,  and  purchased  by  G.,  to  whom  the  clerk  after- 
wards conveyed  it.  In  ejectment  by  G.  against  R.  to  recover 
land,  held :  Under  the  statute,  Code  of  1873,  ch.  38,  sec.  26,  a 
purchaser  at  a  sale  of  land  delinquent  for  taxes  only  acquires 
such  estate  as  was  vested  in  the  person  assessed  with  the  taxes 
at  the  commencement  of  the  year  for  which  said  taxes  were 
assessed,  and  as  T.  had  in  1864  sold  and  conveyed  the  land  to 
R.,  T.  had  no  estate  in  the  land  in  January,  1865,  and  G.  took  no 
title  to  the  land  under  his  purchase  and  the  deed  to  him. 

CHAPTER  XXIX. 

CHAPTER  XXX. 

Section  682. 
In  the  case  of  Coinmonwealih  vs.  Ford  et  als.,  29  Grat.,  683, 
decided  January  17, 1878,  it  was  held :  A  judgment  in  the  name 
of  the  Commonwealth  for  W.,  treasurer  of  C.  county,  founded 
on  a  notice  in  the  name  of  the  Commonwealth,  proceeding  by  W., 
late  treasurer  of  C.  against  P.,  the  collector  of  township  M.,  and 
his  sureties,  upon  his  official  bond,  is  a  judgment  in  favor  of 
the  Commonwealth.  On  such  a  judgment,  the  Commonwealth, 
at  the  relation  of  T.,  auditor  of  accounts,  may  maintain  a  suit 
against  F.  and  his  sureties. 

SECTION  685. 
In  the  case  of  Monteith  {Sheriff)  et  als.  vs.  77ie  Coimnonwealth, 
15  Grat.,  172,  decided  April,  1859,  it  was  held:  On  motion 
against  a  sheriff  and  his  sureties  for  his  failure  to  pay  his  taxes 
due  to  the  Commonwealth,  it  is  not  necessary  that  the  notice 
should  state  on  what  bond  of  the  sheriff  the  motion  will  be  made. 


48  Citations  to  the  Code  of  Virginia. 

Section  684. 
In  the  case  of  Monteith  {Sheinff)  et  ah.  vs.  The  ComviomveaUK 
15  Grat.,  172,  decided  April,  1859,  it  was  held:  The  notice  to 
sheriff  and  his  sureties  being  of  a  motion  for  a  balance  of  the 
land  property,  and  free  negro  taxes  of  1857,  and  a  judgment 
being  for  a  balance  due  upon  these,  and  also  for  a  license  tax, 
this  is  error  for  which  the  judgment  wiU  be  reversed  m  the  ap- 

In  the  case  of  Commonwealth  vs.  Latham  {Judge),  85  Va.,  632, 
decided  Januarv  10,  1889,  it  was  held:  The  Circuit  Court  of 
Richmond  city  alone  hath  jurisdiction  to  enjom  or  affect  any 
judgment  in  behalf  of  the  Commonwealth. 

Section  701. 
In  the  case  of  Commonwealth  vs.  Ford,  29  Grat.,  683,  decided 
January  17,  1878,  it  was  held:  The  property  of  the  sureties  be- 
ing covered  by  their  homestead  exemption  deeds,  the  Common- 
wealth may  go  into  equity  to  enforce  her  judgment  against 

them. 

Section  702. 

The  reference  to  18  Grat.,  13-28,  applies  to  the  former  statute,. 

now  useless  in  this  connection. 

CHAPTER  XXXI. 

Section  712. 
In  the  case  of  Commonwealth  vs.  Collins,  9  Leigh,  666,  de- 
cided December,  1839,  by  the  General  Court,  it  was  held :  For- 
feiture for  selHng  goods  without  a  license  may  be  recovered  upon 
presentment  and  indictment. 

Section  714. 
In  the  case  of  Honaker  vs.  Howe,  19  Grat.,  50,  decided  Feb- 
ruary 2,  1869,  it  was  held :  Page  55 — Cases  of  special  fines,  pre- 
scribed by  statute,  are  governed  by  this  section.  It  is  not 
necessary,  therefore,  in  order  to  afford  a  foundation  for  the 
judgment,  as  it  is  in  the  case  of  "submission,"  to  regard  the 
prosecution  as  implying  a  confession  of  guilt  for  the  purposes 
of  the  case.  The  judgment  in  such  a  case  stands  on  no  other 
foundation  than  the  consent  of  the  defendant,  given  in  pursu- 
ance of  the  compromise  with  the  Commonwealth,  that  judg- 
ment may  be  entered  up  against  him  for  the  fine  agreed  upon. 
Nor  is  there  anything  in  the  fact  of  proposing  or  assenting  to 
such  a  compromise  arrangement,  which  necessarily  implies  an 
admission  of  guilt. 

Section  717. 
In  Ex  Parte  Marx,  86  Va.,  40,  decided  April  18,  1889,  it  was 


Citations  to  the  Code  op  Virginia.  49 

held :  The  fine  prescribed  for  violating  the  Sabbath  is  recovera- 
ble before  a  justice  and  by  a  civil  warrant.  The  constitutional 
rights  to  trial  by  jury  does  not  extend  to  such  an  offence. 

Section  724. 

In  the  case  of  Wells  vs.  The  Comino7noealth,  21  Grat.,  500, 
decided  November  13,  1871,  it  was  held:  An  appeal  may  be 
taken  to  the  court  of  appeals  from  the  judgment  of  a  circuit 
court  imposing  a  fine  upon  a  person  for  a  contempt  of  the 
court,  in  aiding  to  obstruct  the  execution  of  a  decree  of  the 
court. 

Section  726. 

In  the  case  of  Shiffiett  et  als.  vs.  Commonvjealth,  18  South- 
eastern Reporter,  838,  decided  January  11,  1894,  it  was  held: 
When  the  accused  was  not  in  custody  it  is  not  error  to  direct 
his  arrest  and  confinement  in  jail  for  the  non-payment  of  a  fine 
before  a  Jleri  facias  has  been  issued;  this  section  giving  the 
court  this  power. 

Section  735. 

In  the  case  of  Tyler  {Sergeant)  vs.  Taylor  {Auditor),  29  Grat., 
765,  decided  February  7,  1878,  it  was  held  :  Fines  collected  by 
a  sheriff  of  a  county,  or  by  the  sergeant  of  a  city  or  town,  are  to 
be  paid  by  him  to  the  treasurer  of  county,  city,  or  town,  and 
not  to  the  auditor  of  accounts  of  the  State,  and"  therefore  a 
mandamus  will  not  He  at  the  suit  of  a  sheriff  or  sergeant  to 
compel  the  auditor  to  receive  coupons  which  have  been  paid  to 
him  in  discharge  of  a  fine. 


TITLE  XIV. 
CHAPTER  XXXII. 

Section  746. 

The  reference  to  18  Grat.,  764,  is  not  a  construction  of  this 
section,  it  was  a  case  which  followed  the  statute. 

In  the  case  of  Commonwealth  vs.  Chalkley,  20  Grat.,  404,  de- 
cided March,  1871,  N.  was  elected  store-keeper  of  the  peniten- 
tiary prior  to  1861,  for  a  term  commencing  on  the  first  of  Jan- 
uary, 1861,  and  to  continue  for  two  years.  In  the  last  of  the 
year  1861,  and  the  first  of  the  year  1862,  he,  as  such  store- 
keeper, purchased  of  C.  leather  and  findings  to  be  manufactured 
by  the  convicts  in  the  penitentiary.  Both  N.  and  C.  recognized 
the  authority  of  the  Richmond  government,  C.  not  having  been 
able  to  obtain  payment  of  his  debt  from  the  Richmond  authori- 
ties, he,  in  December,  1866,  instituted  proceedings  to  recover 
the  amount  due  him  from  the  present  government  of  Virginia. 


60  *      Citations  to  the  Code  of  Virginia. 

Held :  He  has  no  claim,  either  in  law  or  equity,  upon  the  pre- 
sent government  for  its  payment. 

In  the  case  of  IRgginhotham  executors  vs.  Commonwealth,  25 
Grat.,  627,  decided  December  18,  1874,  it  was  held:  The 
present  state  of  Virginia  is  bound  to  the  creditors  of  the  State 
for  debts  due  before  the  division  for  the  whole  of  their  debts, 
and  West  Virginia  is  equally  bound. 

Under  the  statute  the  State  of  Virginia  may  be  sued  for  any 
debt  or  claim  due,  whether  liquidated  or  unliquidated. 

In  the  case  of  Parsons  vs.  The  Commonwealth,  80  Va.,  163, 
decided  January  29,  1885,  P.,  a  creditor  of  the  Commonwealth, 
filed  in  the  Circuit  Court  of  the  city  of  Richmond  his  petition 
against  the  Commonwealth  and  the  auditor  of  public  accounts, 
praying  judgment  against  her  for  the  amount  of  the  debt,  and 
a  rule  was  awarded  summoning  them  to  answer  the  petition. 
Later,  before  the  appearance  of  either  of  them,  the  court,  ex 
m^ro  motu,  dismissed  the  petition  against  the  Commonwealth. 
On  error  to  this  court,  held :  Under  statute  the  Commonwealth 
of  Virginia  may  be  sued  for  any  debt  or  claim  due.  But 
though  the  order  dismissing  the  petition  against  the  Com- 
monwealth may  have  been  necessary,  yet,  as  it  did  not  effect  the 
petitioner's  right  or  remedy,  it  was  not  an  error  for  which  this 
court  will  reverse  the  order. 

In  the  case  of  Dmmington  vs.  Ford,  80  Va.,  177,  decided 
February'  5,  1885,  it  was  held:  The  State  can  only  be  sued  by 
its  consent.  When  a  remedy  by  suit  against  the  State,  or  any 
of  its  officials  provided,  those  seeking  to  avail  of  its  benefits 
must  allow  its  provisions  with  exact  strictness. 

Under  act  of  January  26,  1882,  amended  March  13,  1884, 
Acts  1883-'84,  page,  527,  the  suit  is  required  to  be  commenced 
by  a  petition  to  be  filed  at  rules,  upon  which  a  summons  shall 
be  issued  to  the  collecting  officer,  and  regularly  matured  like  any 
other  action  at  law,  and  the  coupons  shall  be  filed  with  the  peti- 
tion. A  suit  brought  in  any  other  way  is  unlawfully  instituted, 
and  must  be  dismissed. 

Section  751. 
In  the  case  of  Commonwealth  vs.  Lillifs  Adm'r.,  1  Leigh, 
525,  decided  April,  1830,  it  was  held :  An  officer  of  the  State 
Navy  of  Virginia  during  the  war  of  the  Revolution,  who  became 
supernumerary  before  and  so  continued  until  the  end  of  the 
war,  entitled  to  half-pay  for  life  under  the  act  of  May,  1779. 
The  act  of  Hmitations  does  not  apply  to  such  a  claim;  nor  does 
the  lapse  of  time,  from  1783,  when  the  claim  accrued,  till  1826, 
when  it  was  asserted,  under  the  circumstances  of  the  case, 
afford  any  presumption  of  payment  or  of  abandonment  of  the 
claim. 


Citations  TO  the  Code  of  Virginia.  61 

TITLE  XV. 

CHAPTEE    XXXIII. 

Section  755. 

In  the  case  of  Walker  et  als.  vs.  Commonwealtli^  18  Grat.,  13, 
decided  November  2,  1867,  it  was  held,  p.  28  :  A  sheriff  cannot 
pay  money  to  the  auditor  or  attorney-general  collected  upon 
execution,  and  though  an  agent  to  sell  delinquent  lands  may  re- 
ceive the  money  from  a  purchaser,  he  must  pay  it  into  the  trea- 
sury in  the  mode  prescribed  by  the  statute  in  all  cases. 

Section  765, 

The  reference  to  18  Grat.,  764,  is  to  a  case  which  does  not 
■construe  the  statute,  but  merely  follows  it. 

In  the  case  of  Dunnington  vs.  Ford,  80  Va.,  177,  decided 
February  5,  1885,  it  was  held  :  The  State  can  only  be  sued  by 
its  consent.  When  a  remedy  by  suit  against  the  State  or  any 
of  its  officials  is  provided,  those  seeking  to  avail  of  its  benefits 
must  follow  its  provisions  with  exact  strictness. 

Under  act  of  the  26th  of  January,  1882,  amended  March  13, 
1884  (Acts  1883-'84,  p.  527),  the  suit  is  required  to  be  com- 
menced by  a  petition  to  be  filed  at  rules,  upon  which  a  summons 
shall  be  issued  to  the  collecting  officer,  and  regularly  matured, 
like  any  other  action  at  law,  and  the  coupons  shall  be  filed  with 
the  petition.  A  suit  brought  in  any  other  way  is  unlawfully  in- 
stituted, and  must  be  dismissed. 

Section  780. 

In  the  case  of  Clarke  vs.  Tyler  {Sergeant),  30  Grat.,  134,  de- 
cided April  4,  1878,  it  was  held,  p.  152  :  This  section  is  not  un- 
constitutional. 


TITLE  XVI. 
CHAPTEE  XXXIV. 

Section  802. 


In  the  case  of  Dinwiddle  County  vs.  Stuart,  Buchanan  (&  Co., 
28  Grat.,  526,  decided  April  26,  1877,  it  was  held :  An  appeal 
from  the  decision  of  a  board  of  supervisors  of  a  county  rejecting 
a  claim  arising  under  an  order  of  a  county  court,  made  in  1862, 
is  properly  taken  to  the  county  court  of  the  county. 


52  Citations  to  the  Code  of  Virginia. 

CHAPTEE  XXXV. 

Section  812. 

In  the  case  of  Yirginius  Johnson  vs.  Mann  {Judge)  and  Couch 
{Treasurer),  11  Va.,  265,  decided  March  15,  1883:  Under  the 
Constitution  and  laws  of  this  State,  county,  municipal  and  dis- 
trict officers  must  qualify  before  the  day  whereon  their  terms 
respectively  begin,  else  their  offices  are  vacant,  and  the  in- 
cumbents continue  to  discharge  the  duties  of  the  offices  after 
their  terms  of  office  have  expired,  until  their  successors  have 
qualified. 

In  May,  1882,  Couch  was  elected  Treasurer  of  Petersburg  for 
term  beginning  July  1,  1882,  and  continuing  three  years ;  when 
elected.  Couch  was  a  member  of  the  city  council,  his  term  not 
expiring  until  July  1,  1884.  On  July  1, 1882,  he  acted  as  coun- 
cilman, but  qualified  and  entered  upon  the  duties  as  treasurer ; 
Johnson,  the  incumbent  treasurer,  claiming  that  he  was  entitled 
to  hold  the  office  until  the  next  regular  election,  and  petitioning 
to  be  restored  thereto  by  mandamus  ;  Held  : 

1.  Couch's  failure  to  qualify  before  the  commencement  of  his 
term  vacated  his  office,  and  the  judge  of  the  Hustings  Court  of 
Petersburg  is  entitled  to  fill  the  vacancy. 

2.  Johnson,  the  incumbent,  is  not  entitled  to  hold  the  treasu- 
rership  until  the  next  general  election,  but  only  until  his  suc- 
cessor so  appointed  shall  have  qualified. 

In  the  case  of  Branham  vs.  Long,  78  Va.,  352,  decided  January 
24,  1884,  it  was  held :  Under  the  Constitution  and  laws  of  this 
State,  county,  municipal  and  district  officers  must  qualify  by 
taking  the  several  oaths  required  by  law  before  the  day  whereon 
their  terms  respectively  begin,  else  their  offices  are  vacant,  and 
the  incumbents  continue  to  discharge  the  duties  of  the  offices 
after  their  terms  of  office  have  expu'ed,  until  their  successors 
have  quahfied. 

Section  813. 

In  the  case  of  Johnson  vs.  Mann  {Judge)  and  Couch  {Treasu- 
rer), 11^  Va.,  265,  decided  March  15,  1883,  it  was  held :  Failure 
to  qualify  before  commencement  of  term  vacates  office,  and  the 
office  may  then  be  filled  by  the  proper  authority. 

CHAPTER  XXXVI. 
Section  833,  Par.  2. 
In  the  case  of  Stockholders  of  the  Bank  of  Abingdon  vs.  Su- 
pervisors of  Washington  County,  88  Va.,  293,  decided  July  16, 
1891  It  was  held:  Under  Acts  1883-'84,  p.  568,  Section  17, 
the  State,  without  regard  to  the  residence  of  stockholders,  levies 
for  State  purposes  a  tax  on  the  assessed  value  of  their  shares  of 
stock  as  It  does  upon  other  monied  capital;  and  this  section  of 


Citations  to  the  Code  of  Yirginia,  53^ 

the  Code  requires  the  supervisors  of  each  county  to  levy  for 
county  purposes  annually,  and  to  order  the  levy  on  all  property 
assessed  with  State  taxes. 

Section  834. 

In  the  case  of  the  Board  of  Supervisors  of  Culpeper  vs.  Gor- 
rell  and  others,  20  Grat.,  484,  decided  March,  1871,  it  was  held : 
The  board  of  supervisors  of  a  county  have  authority  to  provide 
land  for  building  a  court-house,  clerk's  office,  and  a  jail,  either 
by  purchase  or  proceeding  to  have  it  condemned  in  the  mode 
prescribed  in  the  statute. 

The  board  of  superA?isors  of  a  county  have  authority  to  sell 
the  lands  belonging  to  the  county  on  which  the  court-house  and 
other  public  buildings  stood.  It  is  for  the  board  of  supervisors 
to  determine  what  land  they  will  procure  for  the  public  build- 
ing of  their  county ;  and  whether  their  discretion  is  wisely  or 
unwisely  exercised  in  the  selection  cannot  be  inquired  into  the 
proceeding  instituted  to  condemn  the  land. 

In  the  case  of  Supervisors  of  Bedford  vs.  Wing  field  {Judge), 
27  Grat.,  329,  decided  March,  1876,  it  was  held :  A  judge  of  a 
circuit  court  has  authoiity  to  control  the  court-house  in  which 
he  administers  justice  to  the  extent  at  least  of  preventing  any  ■ 
interference  Avith  the  discharge  of  the  public  business,  and  of 
having  necessary  jury  rooms  and  other  conveniences  for  that 
purpose*  Where  there  is  any  such  interference  by  the  board  of 
supervisors  of  a  county,  or  any  one  else,  the  judge  certainly  has 
the  right  to  inquire  into  it.  If,  in  doing  so,  he  violates  the  law 
or  infringes  upon  the  rights  of  others,  his  action  may  be  cor- 
rected by  a  writ  of  error,  but  it  is  npt  a  case  in  which  prohibi- 
tion will  lie. 

The  board  of  supervisors  of  a  county  order  that  one  of  the 
jury  rooms  attached  to  the  court-house  shall  be  prepared  to  be 
used  as  a  part  of  the  clerk's  office  of  the  county  court,  and  this 
order  is  approved  by  the  county  court.  The  judge  of  the  cir- 
cuit court  thereupon  makes  a  rule  upon  the  board  of  supervisors 
to  show  cause  why  they  shall  not  be  restrained  from  making  the 
changes  in  the  room.  This  court  will  not  restrain  him  by  pro- 
hibition by  proceeding  under  the  rule,  but  the  board  should 
make  their  defence  in  the  circuit  court,  and  any  error  of  the 
judge  in  that  proceeding  may  be  corrected  by  a  writ  of  error  to 
this  court. 

Section  838. 

In  the  case  of  Dinwiddie  County  vs.  Stuart,  Buchanan  c6  Co., 
28  Grat.,  526,  decided  April  26,  1877,  it  was  held :  An  appeal 
from  a  decision  of  a  board  of  supervisors  of  a  county  rejecting 
a  claim  arising  under  an  order  of  a  county  court,  made  in  1862, 
is  properly  taken  to  the  county  couii  of  the  county.  The  refer- 
ence to  28  Grat.,  872,  is  an  error. 


54  Citations  to  the  Code  of  Virginia. 

Section  843. 

In  the  case  of  Dinwiddle  County  vs.  Stuart,  Buchanan  c&  Co., 
28  Grat.,  526,  decided  April  26,  1877,  it  was  held :  An  appeal 
from  a  decision  of  a  board  of  supervisors  of  a  county  rejecting 
a  claim  arising  under  an  order  of  a  county  court,  made  in  1862, 
is  properly  taken  to  the  county  court  of  the  county. 

In  the  case  of  Prince  George  County  vs.  A.  M.  (&  O.  B.  B.  Co., 
87  Va.,  283,  decided  January  8, 1891,  it  was  held  :  Where  board 
of  supervisors  "  refused "  to  act  upon  a  claim  presented  under 
this  section,  claimant  may  sue  the  county  under  Section  843. 

Section  844. 
See  the  case  of  Prince  George  County  vs.  JL.  M.  <&  A.  B.  B. 
Co.,  87  Va.,  283,  cited  mpra,  Section  843. 

CHAPTEE  XXXVII. 

Section  859. 

In  the  case  of  Anahle  vs.  Commoyiwealth,  24  Grat.,  563  and 
576,  decided  November,  1873,  A.  was  the  secretary  of  the 
Board  of  Supervisors  of  the  county  of  H.,  and  there  was  to  his 
credit  on  the  books  of  the  treasurer  for  claims  held  by  him 
against  the  county  one  thousand  six  hundred  and  forty-nine  dol- 
lars. Blank  warrants,  signed  by  the  chairman  of  the  board, 
were  left  with  him,  and  he  filled  up  and  sold  warrants  to  a  con- 
siderably larger  amount  than  the  sum  due  to  him.  Warrants  to 
near  the  amount  due  are  registered,  and  among  these  one  for 
three  hundred  and  fifty  dollars  sold  to  W. ;  but  there  were  other 
warrants  sold  before  the  one  was  sold  to  W.,  and  if  they  had 
been  registered  before  W.'s,  the  fund  would  have  been  exhausted, 
and  would  have  left  nothing  to  be  applied  to  W.'s  warrant. 
Upon  an  indictment  of  A.  for  larceny  of  the  check  given  by  W. 
for  payment  of  the  warrants,  held:  The  warrants  are  to  be 
paid  in  the  order  in  which  they  are  registered,  and  there  being 
sufficient  to  pay  W.'s  warrant,  as  well  as  all  the  warrants  regis- 
tered before  it,  A.  cannot  be  convicted  of  the  larceny  charged. 

W.  having  bought  his  warrant  of  N.,  an  agent  of  A.,  and  hav- 
ing given  a  check  payable  to  the  order  of  N.,  and  the  indictment 
charging  the  larceny  of  the  check  of  W.,  endorsed  by  N.,  and 
the  proof  being  that  N.  endorsed  his  name  after  receiving  the 
check. 

QucBre  :  If  this  is  a  variance. 

Section  864. 
The  reference  to  2  H.  &  M.,  580,  is  an  error. 
In  the  case  of  Munford  et  als.  vs.  The  Overseers  of  the  Poor  of 
Nottorway,  2  Rand.,  313,  decided  February  18, 1824,  it  was  held : 


Citations  to  the  Code  of  Virginia.  66 

A  judgment  against  a  principal  in  a  bond  is  not  conclusive  evi- 
dence against  his  sureties. 

When  the  principal  and  sureties  are  sued  jointly,  and  the 
judgment  is  erroneous  as  to  the  sureties,  it  must  be  reversed  as 
to  all,  although  the  judgment  would  have  been  good  against  the 
principal  if  he  had  been  sued  alone. 

The  reference  to  2  Leigh,  393,  is  continued  in  the  present 
Code  by  error.     It  does  not  apply  to  this  section. 

Section  865. 

In  the  case  of  Overseers  of  the  Poor  of  BrunsvncJc  vs.  Tucker, 
2  Leigh,  580,  decided  March,  1831,  T.  sheriff  of  B.,  for  the 
years  1803-'4,  collects  the  poor  rates ;  and  in  November,  1823, 
the  overseers  of  the  poor  commence  proceedings  against  him 
by  motion  for  balances  unaccounted  for.  Held :  After  such  a 
lapse  of  time  the  motion  ought  not  to  be  entertained. 

In  the  case  of  Board  of  Supervisors  of  Washington  County  vs. 
Dunn  et  als.,  27  Grat.,  608,  decided  June,  1876,  it  was  held, 
p.  622 :  A  notice  by  the  supervisors  of  a  county  to  D.,  late 
sheriff,  and  his  sureties,  that  they  will  move  the  county  court  at 
its  November  term  to  render  judgment  against  them  for  the 
sum  of  $4,840.03,  the  same  being  the  amount  of  said  D.'s  defi- 
ciency and  default  for  county  levies  for  the  year  1869,  that  went 
into  D.'s  hands  as  sheriff  as  aforesaid,  and  which  he  had  failed 
to  account  for,  etc.,  is  sufficiently  specific  and  definite  to  warrant 
a  judgment  thereon. 

The  rule  governing  notices  is  that  they  are  presumed  to  be 
the  acts  of  parties,  and  not  of  lawyers.  They  are  viewed  with 
great  indulgence  by  the  courts,  and  if  the  terms  of  the  notice  be 
general,  the  court  will  construe  it  favorably,  and  will  apply  it 
according  to  the  truth  of  the  case,  so  far  as  the  notice  will 
admit  of  such  application.  If  it  be  such  that  the  defendant 
cannot  mistake  the  object  of  the  motion,  it  will  be  sufficient. 

Upon  notice  to  a  sheriff  and  his  sureties  of  a  motion  against 
them  for  his  failure  to  account  for  taxes,  they  appear  and  ask 
for  a  rule  upon  the  attorney  for  the  Commonwealth  to  show 
cause  why  the  record  of  the  bond  of  the  sheriff  should  be 
amended,  corrected  or  vacated ;  and  several  of  the  sureties  file 
affidavits,  in  which  each  states  the  grounds  on  which  he  relies, 
to  show  he  is  not  bound  by  the  bond.  One  says  he  signed  on 
condition  that  other  persons  should  sign.  Another  says  he 
signed  the  bond,  but  never  acknowledged  or  delivered  it,  and 
after  signing  it  he  determined  not  to  acknowledge  it.  Another 
says  he  acknowledged  it  in  court,  on  condition  that  all  the  par- 
ties who  signed  would  acknowledge  it.  In  fact,  the  defendants 
had  either  acknowledged  the  bond  before  the  court  or  before  a 
justice,  and  none  of  these  conditions  appeared  on  the  record  or 


56  •  Citations  to  the  Code  of  Virginia. 

bond,  or  were  made  known  to  the  court.  These  affidavits  pre- 
sent no  grounds  for  the  release  of  the  parties  or  for  the  rule. 

It  is  not  necessary  that  the  sureties  of  a  sheriff  in  his  official 
bond  should  acknowledge  the  same  in  court.  The  bond  may 
be  acknowledged  by  them  in  court,  or  its  execution  out  of  court 
may  be  proved  by  witnesses.  And  there  is  no  statute  or  rule  of 
law  requiring  such  proof  to  be  adduced  at  the  time  the  bond  is 
received  by  the  court.  With  or  without  such  proof,  the  parties 
who  had  actually  signed  woidd  be  bound  by  the  deed. 

A  person  who  signs,  seals  and  delivers  an  instrument  as  his 
deed  will  never  be  heard  to  question  its  validity  upon  the 
ground  that  it  was  not  acknowledged  by  him  nor  proved  at  the 
time  of  the  dehvery.  It  is  the  seaUng  and  delivery  that  gives 
efficacy  to  the  deed,  not  proof  of  its  execution ;  and  this  prin- 
ciple appUes  to  all  bonds,  whether  executed  by  public  officers 
or  private  persons,  unless  there  is  a  statute  making  the  acknow- 
ledgment or  proof  in  court  essential  to  the  validity  of  the 
instrument. 

In  an  action  on  an  official  bond,  if  there  is  no  record  evidence, 
the  execution  of  it  may  be  established  by  the  testimony  of  at- 
testing witnesses,  or  if  there  be  none,  by  proof  of  handwriting,  or 
by  discovery  from  the  adverse  party. 

On  notice  of  a  motion  against  a  sheriff  and  his  sureties  on 
his  official  bond,  the  pleas  of  "  no7i  damnijlcatus  "  and  "  nil  debet " 
are  not  proper  pleas.  The  fact  that  the  names  of  two  of  the 
parties  who  executed  and  acknowledged  the  bond  were  not  in 
the  body  of  it  does  not  invalidate  as  to  them. 

On  a  motion  against  a  sheriff  and  his  sureties  for  the  county 
levies  he  had  failed  to  account  for,  the  report  of  the  clerk  who 
had  been  directed  by  an  order  of  the  county  court  to  settle  the 
sheriff's  account,  though  made  with  the  sheriff  without  notice  to 
the  sureties,  is  competent  evidence  against  them  to  show  the 
amount  for  which  the  sheriff  is  indebted.  If  they  had  notice  as 
the  statute  provides,  the  report  would  be  conclusive  upon  them ; 
without  notice,  it  is  prima  facie  evidence  of  the  amount  of  the 
sheriff's  indebtedness. 

CHAPTEK  XXXVIII. 

Section  869. 

t^k}^^  f^^-  ^^  ^^^^^^^^  ^^  Kiser  vs.  EoanoJce  Co.,  Va.  Eeports, 
/5,  58o,  decided  September,  1881,  it  was  held:  The  suppHes 
were  to  be  procured  by  purchase,  and,  if  need  be,  by  impress- 
ment, through  agents  appointed  for  the  purpose,  and  the  debts 
tnus  contracted  were  to  be  paid  in  the  manner  and  bv  the  means 
indicated.  The  express  designation  of  a  particular  mode  of 
raising  the  means  excludes  every  other,  though  the  borrowing 


Citations  to  the  Code  of  Virginia.  67 

of  money  might  be  deemed  by  some  a  more  appropriate  mode 
than  a  levy  in  the  ordinary  way. 

Section  881. 

In  the  case  of  City  of  Lynchburg  vs.  Slaughter,  Va.  Reports, 
75,  p.  57,  decided  November  25,  1880 :  A  municipal  corpora- 
tion, having  a  general  authority  under  its  charter  to  contract 
loans  or  cause  to  be  issued  certificates  of  debts  or  bonds,  may 
issue  coupon  bonds  and  sell  them  at  public  auction  for  less 
than  their  par  value,  and  for  bonds  sold  during  the  war  might 
receive  payment  for  them  in  Confederate  money. 

A  municipal  corporation,  having  authority  to  provide  for  the 
poor  and  needy  of  the  city  in  1864,  pass  an  ordinance  for  the 
issue  of  fifty  thousand  dollars  of  the  coupon  bonds  of  the  city, 
and  the  ordinance  provides  that  the  proceeds  shall  be  paid  into 
the  treasury  of  the  city,  subject  to  the  order  of  the  council,  for 
the  use  and  benefit  of  indigent  families  and  citizens.  Held: 
A  lona  fide  holder  of  these  bonds  is  not  required  to  look  farther 
than  the  ordinance  to  see  whether  the  bonds  were  issued  for  a 
legitimate  purpose ;  and  his  right  to  recovery  upon  the  bonds 
will  not  be  affected  by  the  fact  that  the  council  may  have  ap- 
plied the  proceeds  of  the  bonds  to  other  purposes. 

Though  coupon  bonds  may  have  been  issued  by  a  municipal 
corporation  for  the  purpose  of  aiding  the  rebellion,  this  not  ap- 
pearing on  the  face  of  the  bonds,  or  the  ordinance  authorizing 
their  issue,  the  bonds  in  the  hands  of  a  hona  fide  holder  for 
value,  without  notice  or  knowledge  of  the  purpose,  are  valid 
and  binding  upon  the  corporation.  And  though  the  holder  of 
the  bonds  had  such  notice,  the  bonds  are  valid  and  binding  in 
the  hands  of  the  present  holder. 

CHAPTER  XXXIX. 

Section  893. 

In  the  case  of  Ballard  et  als.  vs.  Thomas  c&  Armuon,  19 
Grat.,  14,  decided  November  14,  1868,  it  was  held,  p.  23 : 
The  statute  is  permissive  only  in  regard  to  causes  other  than 
the  death  of  the  sheriff,  and  not  mandatory.  When  no  such 
appointment  is  made,  the  duty  of  the  sheriff  remains,  and  the 
sureties  remain  liable  for  its  due  performance. 

Section  895. 

In  the  case  of  Andrews  vs.  Fitzpatrick,  89  Ya.,  438,  decided 
December  1,  1892,  it  was  held :  Unless  the  office  of  coroner  is 
vacant,  or  the  incumbent  under  disability,  a  constable  cannot 
lawfully  serve  a  process  directed  to  the  sheriff.  Such  is  no 
legal  service  and  should  be  quashed. 


58  Citations  to  the  Code  of  Virginia. 

Section  897. 

In  the  case  of  Ferg^ison  et  als.  vs.  -Moore,  2  Washington,  54,. 
decided  April  term,  1795,  it  was  held :  A  bond  taken  upon  re- 
plevying property  distrained  for  rent  must  be  returned  to  the 
court  to  which  the  officer  levying  the  distress  belongs,  or  to  the 
court  of  that  county  in  which  the  land  lies. 

The  reference  to  Barhsdale  et  als.  vs.  Neale,  16  Grat.,  314,^ 
315,  is  an  error.  That  case  defines  what  is  a  good  return  on  a 
process.     See  the  cases  cited  to  Section  3591. 

Section  898. 
In  the  case  of  Commonwealth  vs.  Roland,  4  Call,  97,  decided 
November,  1786,  it  was  held :  Judges,  attomies,  witnesses  and 
suitors  are  exempt  from  arrest  in  civil  suits  during  their  attend- 
ance at  court,  and  for  a  reasonable  time  thereafter  to  return 
home  by  the  common  law.  This  statute  was  afterwards  passed 
to  estabhsh  the  exact  extent  of  the  privilege. 

Section  900. 

In  the  case  of  Turnbull  vs.  Thoinpson  et  als.,  27  Grat.,  306,, 
decided  March  16,  1876,  it  was  held :  A  summons  in  debt  is 
served  on  a  defendant  on  the  3d  of  February,  and  the  judgment 
by  default  becomes  final  on  the  3d  of  March.  Under  the  statute 
the  day  of  the  service  of  the  process  may  be  counted,  and  there- 
fore thirty  days  had  elapsed  between  the  service  of  process  and 
the  judgment,  and  it  is  a  valid  judgment. 

In  the  case  of  Jesse  3Etchell  vs.  The  Commonwealth,  89  Va., 
826,  decided  March  30,  1893.  When  the  return  to  process  is 
signed  only  with  the  name  of  the  deputy  by  whom  it  has  been 
served,  and  not  with  that  of  the  principal  also,  held :  Such  pro- 
cess and  return  should  be  quashed  by  the  trial  court. 

Section  901. 

In  the  case  of  Bullock  vs.  Goodall  et  als.,  3  Call,  44  (2d 
edition,  39),  decided  October  14,  1801,  it  was  held :  If  the  sheriff 
neglects  to  return  an  execution  at  the  request  of  the  plaintiff, 
he  is  not  liable  to  a  fine. 

In  the  case  of  TomJcies'  Executors  vs.  Downman,  6  Munf.,  557, 
decided  March  28,  1820,  it  was  held :  Not  more  than  one  fine 
can  legally  be  imposed  on  the  sheriff,  or  other  officer,  for  failing 
to  return  one  execution.  The  plaintiff  at  law  having  recovered, 
by  successive  judgments,  many  fines  against  the  sheriff  for  fail- 
ing to  return  one  execution,  to  a  greater  amount  in  all  than  the 
execution  itself,  with  his  extra  costs  added  thereto ;  it  appear- 
ing also  that  the  execution  was  lost,  and  therefore  could  not  be 
returned ;  that  the  sheriffs  failure  to  make  defence  at  law  against 
any  of  the  judgments  after  the  first,  proceeded  from  ignorance 


Citations  to  the  Code  of  Virginia.  59 

of  the  true  construction  of  the  act  of  assembly;  and  that,  in 
relation  thereto,  there  was  a  general  delusion  among  the  citizens 
of  the  Commonwealth,  the  court  of  equity  gave  the  sheriff  re- 
lief by  injunction,  prohibiting  any  farther  recovery  against  him 
on  account  of  his  failure  to  return  the  said  execution ;  and  this, 
although  it  appeared  he  had  received  and  applied  to  his  own 
use  a  part,  and  probably  the  whole,  of  the  money  upon  the 
execution. 

In  the  case  of  Fletcher  vs.  Chapman,  2  Leigh,  560,  decided 
March,  1831 :  A  fi.  fa.  sued  out  by  C.  against  P.  is  delivered 
to  the  sheriff,  and  P.,  the  debtor,  pays  the  amount  of  the  ex- 
ecution to  C,  the  creditor;  the  sheriff  fails  to  make  due  retiim 
of  the  execution.  Held :  P.,  the  debtor,  cannot  maintain  a  mo- 
tion in  the  name  of  C,  the  creditor,  against  the  sheriff  for  a  fine 
for  failing  to  retvirn  the  execution,  even  though  the  debtor  were 
a  party  injured  thereby. 

The  reference  to  30  Grat.,  p.  16,  is  an  error. 

Section  907. 
In  the  case  of  Ballard  vs.  Whitlock,  18  Grat.,  235,  decided 
February  18,  1867,  it  was  held,  p.  239 :  The  sheriff  may  re- 
ceive chattels  under  this  section,  for  the  production  of  which  a 
forthcoming  bond  has  been  given,  and  sell  the  same  after  the 
return  day  of  the  execution. 

Section  909. 

In  the  case  of  Dreio  vs.  Anderson,  1  Call,  51  (2d  edition, 
44),  decided  November  16,  1797,  it  was  held:  If  there  be  a 
judgment  for  too  much  money  against  the  sheriff  on  account  of 
money  received  by  his  deputy  on  an  execution,  he  cannot  re- 
cover the  amount  of  that  judgment  against  his  deputy ;  for  he 
shall  not,  by  submitting  to  an  erroneous  judgment,  saddle  the 
deputy  with  it. 

In  the  case  of  Taylor  vs.  Dtindass,  1  Washington,  92,  decided 
at  spring  term,  1792,  it  was  held :  The  execution  book  directed 
to  be  kept  by  the  clerk  shall  be  prima  facie  evidence  of  the 
time  of  a  return  on  execution,  liable,  however,  to  be  set  aside  by 
clear  proof  of  error. 

In  the  case  of  Paxton  vs.  Rich,  85  Va.,  378,  decided  Septem- 
ber 13,  1888,  it  was  held :  This  section,  providing  that  in  mo- 
tions against  officers  for  money  the  fact  that  a  fi.  fa.  has  not 
been  returned  shall  be  prima  facie  evidence  that  the  whole 
amoimt  has  been  collected,  has  no  application  but  to  such  pro- 
ceedings ;  and  the  facts  that,  about  a  year  before  iYiQfi.  fa.  went 
into  the  sheriff's  hands  another  execution  against  same  debtor 
was  returned  (no  effects),  and  that  an  account  of  liens  was  de- 
creed, which  creditor  could  and  did  take  advantage  of  to  repel 


60  Citations  to  the  Code  of  Virginia. 

any  presumption  of  payment  arising  from  non  return  of  ji.  fa. 
for  fourteen  years. 

Section  910. 

See  the  case  of  Drew  vs.  Anderson,  1  Call,  51  (2d  edition, 
44),  quoted  ante,  Section  909. 

In  the  case  of  Boyster  et  als.  vs.  Leake,  2  Munf.,  280,  decided 
May  8,  1811,  it  was  held :  A  bond  from  the  deputy  to  the  high 
sheriff,  conditioned  for  the  faithful  performance  of  his  duty  dur- 
ing his  continuance  in  the  office  of  deputy  sheriff,  is  binding 
upon  him  and  his  sureties  for  the  second  year  as  well  as  the 
first,  and  until  the  winding  up  of  the  business  lawfully  com- 
mitted to  him  as  deputy. 

In  the  case  of  Davis  vs.  Johnson  <&  Co.,  3  Munf.,  81,  decided 
December  20,  1811,  it  was  held:  In  an  action  on  the  case 
against  a  sheriff  for  failing  to  levy  an  execution,  if  the  return 
was  "that  there  were  no  effects  with  which  the  debt  could  be  sat- 
isfied, the  burden  is  thrown  on  the  plaintiff  of  proving  the  false- 
hood of  such  return,  and  the  court,  if  requested  in  a  proper 
manner,  ought  to  instruct  the  jury."  But  if  the  defendant  re- 
quest the  court  to  instruct  the  jury  "that  it  is  incumbent  on  the 
plaintiff  to  prove  the  falsehood  of  the  return  mentioned  in  the 
declaration,"  and  no  return  be  distinctly  stated  therein,  the 
court  ought  to  decline  giving  any  instruction  in  pursuance  of 
such  request. 

In  the  case  of  Norris  vs.  Crummy  et  als.,  2  Eand.,  323,  de- 
cided February  19,  1824,  it  was  held  :  If  a  sheriff,  before  a  judg- 
ment is  obtained,  makes  an  arrangement  with  the  defendant  by 
which  he  (the  sheriff)  undertakes,  for  a  valuable  consideration, 
to  pay  the  debt  to  the  plaintiff  when  the  judgment  is  rendered, 
and  execution  sued  out  and  return  "  ready  to  render,"  he  will  be 
considered  as  having  "  levied  the  debt "  within  the  meaning  of 
the  statute ;  and  if  he  fails  to  pay  the  plaintiff,  the  sureties  in 
his  official  bond  will  be  liable  for  his  default,  unless  the  plaintiff 
was  privy  to  such  arrangement. 

In  the  case  of  Jacohs  vs.  Hill,  2  Leigh,  393,  decided  Novem- 
ber, 1830,  a  bond  is  executed  to  a  sheriff  during  the  first  year  of 
his  shriffalty  by  a  deputy  sheriff  and  his  sureties,  the  condition 
whereof  recites  that  the  sheriff  has  been  commissioned  sheriff 
of  N.,  and  that  the  deputy  has  undertaken  the  duties  of  the  said 
office  for  and  during  the  time  the  sheriff  may  continue  in  the 
office,  etc.  Held  :  That  the  contract  here  recited  is  the  deputa- 
tion of  the  office,  not  only  for  the  first,  but  for  the  second  year 
also  of  the  shriffalty,  and  the  sureties  are  bound  for  the  con- 
duct of  the  deputy  during  both  years.  The  statute  giving  a 
summary  remedy  by  motion  for  a  sheriff  against  his  deputy  and 
his  sureties  does  not  authorize  the  court  to  allow  interest. 

A  motion  is  made  against  a  sheriff  for  default  of  his  deputy, 


Citations  to  the  Code  of  Yirginia.  61 

upon  which  the  sheriif,  with  the  assent  of  the  deputy,  but  with- 
out the  knowledge  of  his  sureties,  confesses  judgment.  Held  : 
The  record  of  his  judgment  is  admissible  evidence  against  the 
deputy's  sureties,  upon  a  motion  by  the  sheriff  against  the 
deputy  and  his  sureties. 

A  deputy  sheriff  gives  bond  with  eight  sureties  to  the  sheriff ; 
one  of  the  sureties  dies.  Held :  A  motion  lies  on  the  bond 
against  the  deputy  and  the  surviving  sureties. 

In  the  case  of  Fletcher  vs.  Chapman,  2  Leigh,  560,  decided 
March,  1831,  neither  the  statute  which  gives  the  motion  against 
a  sheriff  for  a  fine  for  failing  to  return  an  execution,  nor  the 
statute  which  gives  a  motion  to  a  sheriff  against  his  deputy  to 
recover  the  amount  of  fines  imposed  upon  the  sheriff  for  the 
alleged  faults  of  the  deputy,  is  imperative  on  the  court  to  give 
such  judgments  ;  but  the  court,  in  its  sound  discretion,  may  give 
or  deny  judgment  in  such  cases. 

Judgment  is  rendered  against  a  sheriff  for  a  fine  for  the 
alleged  default  of  his  deputy,  the  sheriff  making  no  defence  nor 
giving  any  notice  to  the  deputy  of  the  proceeding.  This  judg- 
ment is  erroneous  in  point  of  law,  and  unjust  upon  the  merits. 
Held :  In  such  case  the  sheriff  is  not  entitled  to  recover  the 
amount  of  the  fine  from  the  deputy. 

In  the  case  of  McDaniel  et  als.  vs.  Brown's  E£or,  8  Leigh, 
218,  decided  March,  1837,  judgment  having  been  rendered 
against  a  sheriff,  on  account  of  the  deputy's  default,  for  a  sum 
of  money,  with  damages,  at  the  rate  of  15  per  centum  per  an- 
num from  a  specified  day  till  payment,  a  motion  is  made,  under 
the  statute,  by  the  sheriff  against  the  deputy  and  his  sureties  for 
the  amount  of  that  judgment.  Held :  On  such  motion  the  judg- 
ment against  the  deputy  and  sureties,  like  that  against  the 
sheriff,  may  be  for  damages  continuing  until  payment. 

In  the  case  of  Scott's  Administrator  vs.  Tankerley's  Executor, 
10  Leigh,  581  (2d  edition,  608),  decided  February,  1840,  a 
decree  is  rendered  against  the  administrator  of  a  sheriff  for  the 
default  of  the  sheriff's  deputy  in  not  returning  an  execution; 
and  thereupon  a  motion  is  made  by  the  administrator  of  the 
sheriff  against  the  executor  of  the  deputy.  At  the  hearing  of 
the  motion,  evidence  is  offered  to  show  that  the  motion  against 
the  sheriffs  administrator  was  not  within  ten  years  from  the 
return  day  of  the  execution.  But  it  appearing  that  the  executor 
of  the  deputy  had  notice  from  the  administrator  of  the  sheriff 
to  defend  the  motion  against  the  said  administrator,  and  pro- 
mised to  attend  to  it.  Held :  The  sheriffs  administrator  is  entitled 
to  judgment  against  the  deputy's  executor. 

In  the  case  of  Skinker  vs.  Weaver,  4  Grat.,  160,  decided 
October,  1847,  it  was  held :  A  judgment  having  been  recovered 
against  a  high  sherift"  for  the  default  of  his  deputy  in  failing  to 


€2  Citations  to  the  Code  of  Virginia. 

pay  over  money  received  on  an  execution,  the  high  sheriff  may, 
though  he  has  discharged  the  judgment,  maintain  a  motion 
against  the  deputy  and  his  sureties  for  the  amount  of  the  judg- 
ment recovered  against  him.  Upon  this  motion  the  high  sheriff 
can  only  recover  the  amount  of  the  judgment  recovered  against 
him ;  and  not  the  aggregate  amount  of  debts,  interest,  and  costs 
paid  by  him,  wdth  interest  thereon. 

In  the  case  of  Lee  County  Justices  vs.  Fulkerson,  21  Grat., 
182,  decided  June,  1871,  it  was  held:  Upon  a  motion  against  a 
high  sheriff  for  the  failure  of  his  deputy  to  collect  and  account 
for  the  county  levies  which  went  into  his  hands,  of  which  motion 
the  deputy  has  notice,  it  is  the  duty  of  the  deputy  to  defend  the 
suit,  and  show,  if  he  can,  that  he  has  accounted  for  them. 

In  such  a  case,  judgment  having  been  rendered  against  the 
high  sheriff,  he  is  entitled  to  recover  a  judgment  for  the  same 
amount  against  his  deputy;  and  the  deputy  cannot  show  upon 
motion  against  him  that  he  has  paid  the  levies  to  the  parties 
entitled.  Judgment  having  been  recovered  against  the  deputy, 
he  applies  for  and  obtains  an  injunction,  on  the  grounds  that 
he  had  been  induced  to  confess  the  judgment,  upon  the  agree- 
ment of  the  high  sheriff  that  the  account  should  be  settled  by 
persons  named,  and  the  execution  should  only  issue  for  the 
amount,  if  any  found  due  from  the  deputy,  and  that  in  fact 
nothing  was  due,  and  in  breach  of  this  agreement,  execution  had 
been  sued  out  on  the  judgment.  At  the  hearing  the  injunction 
is  dissolved  and  the  bill  dismissed,  and  this  decree  is  affirmed 
on  appeal.  The  deputy  is  estopped  from  proceeding  by  bill  in 
equity  against  the  justices  of  the  county,  to  recover  the  amount 
he  has  paid  to  the  county  creditors  above  what  he  has  collected 
from  the  county  levies. 

The  judgment  recovered  against  the  high  sheriff  is  by  a  credi- 
tor of  the  county  for  money  lent ;  the  deputy  sustains  no  such 
relation  to  the  creditor  as  will  entitle  him  to  be  substituted  to 
the  rights  of  the  creditor  against  the  justices  of  the  county,  to 
enforce  the  payment  of  so  much  of  the  debt  as  they  have'  not 
levied  for. 

The  deputy  sheriff  pays  the  judgments  recovered  against  him 
in  1847,  and  he  does  not  institute  his  suit  against  the  justices  of 
the  county  until  1858.  The  statute  of  limitations  is  a  bar  to  the 
claim.  ^ifCBre.-  Whether  under  any  circumstances  the  deputy 
sheriff  could  maintain  a  suit  against  the  justices  of  a  county  for 
their  failure  to  lay  the  levy.     And  it  seems  he  could  not. 

In  the  case  of  Ramsey's  Administrators  vs.  McCue  et  als.,  21 
Grat.,  349,  decided  August,  1871,  it  was  held :  There  is  a  judg- 
ment against  a  high  sheriff  for  a  fine  for  the  failure  of  one  of  his 
deputies  to  return  an  execution,  which  the  record  showed  had 
come  into  the  hands  of  the  deputy ;  and  the  high  sheriff  satisfies 


Citations  to  the  Code  of  Virginia.  63 

the  judgment.  In  fact,  the  execution  had  been  delivered  to 
another  deputy,  who  formed  the  sheriffalty,  who  collected  the 
money,  and  failed  to  pay  it  over,  and  to  return  the  execution. 
The  high  sheriff  may  sue  the  last  named  deputy  and  the  sureties 
on  his  bond,  and  recover  the  amount  that  he  had  paid. 

In  the  case  of  Crawford  et  als.  vs.  2\irk  {Sheriff),  24  Grat., 
176  and  188,  decided  January,  1874,  it  was  held :  In  an  action 
by  an  execution  creditor  against  a  high  sheriff  for  the  failure  of 
his  deputy  to  pay  over  money  made  on  the  execution,  the  dep- 
uty is  present  at  the  trial  and  examined  as  a  witness,  but  there 
is  a  verdict  and  judgment  for  the  plaintiff.  In  a  subsequent 
action  by  the  high  sheriff  against  the  deputy  and  his  sureties, 
on  their  bond  with  condition  to  indemnify  the  high  sheriff  from 
all  loss  and  damages  from  the  conduct  of  deputy  in  said  ofl&ce, 
the  judgment  against  the  high  sheriff,  in  the  absence  of  fraud 
and  collusion,  is  conclusive  evidence  of  the  default  of  the  deputy 
against  not  only  the  deputy,  but  also  his  sureties. 

Though  the  declaration  in  the  action  by  the  high  sheriff  does 
not  allege  that  the  deputy  was  requested  to  defend  the  suit 
against  the  high  sheriff,  or  had  an  opportunity  of  doing  so,  or 
had  notice  thereof,  his  presence  at  the  trial  and  being  active  in 
the  defence  may  be  proved  by  oral  testimony. 

1.  In  the  case  of  Allebaugh  vs.  Coakley  et  als.,  Va.  Reports, 
75,  628,  decided  September,  1881,  a  deputy  sheriff  made  default 
in  paying  over  certain  collections  which  were  made,  or  ought  to 
have  been  made,  by  him  prior  to  1869.  A  judgment  for  the 
amount  of  such  collections  was  obtained  against  the  sheriff  in 
1874,  and  the  judgment  was  paid  by  him  in  1878.  In  May, 
1879,  the  sheriff  moved  against  the  deputy  and  his  sureties  for 
his  judgment  for  the  amount  so  paid  with  interest  and  damages. 
Held:  That  the  claim  of  the  plaintiff  was  not  barred  by  the 
statute  of  limitations,  notwithstanding  the  default  of  the  deputy 
occurred  more  than  ten  years  before  his  principal  moved  for 
judgment  against  him. 

2.  Under  Section  46,  Chapter  49,  of  the  Code  of  1873,  whenever 
a  sheriff  becomes  liable  on  account  of  the  default  of  the  deputy, 
whether  a  judgment  has  or  has  not  been  recovered  against  the 
sheriff,  and  although  he  has  paid  nothing  to  the  creditor,  he  is 
entitled  to  recover  against  the  deputy  and  his  sureties  the 
amount  for  which  he  may  be  so  liable. 

Under  the  47th  Chapter  of  the  same  section  the  sheriff  is 
authorized  to  proceed  against  the  deputy  and  his  sureties  only 
when  there  has  been  a  recovery  against  him,  and  a  payment  of 
the  amount,  in  whole  or  in  part,  to  the  creditor. 

At  common  law  the  sheriff,  upon  paying  the  debt  accruing 
from  the  default  of  his  deputy,  might  at  once  bring  an  action 
against  such  deputies  and  his  sureties  for  reimbursement.     But 


64  Citations  to  the  Code  of  Virginia. 

until  such  payment  no  right  of  action  could  accrue  upon  the 
bond  of  the  deputy.  The  object  of  the  46th  Section  aforesaid 
was  to  furnish  a  complete  indemnity  to  the  sheriff  by  providing 
for  him  a  remedy  by  anticipation,  so  as  to  enable  him  to  re- 
cover of  the  deputy  in  time  to  meet  the  demand  of  the  credi- 
tor. 

The  said  46th  Section  is  cumulative,  and  was  not  designed 
to  affect  any  of  the  sheriff's  existing  rights  and  remedies.  He 
may,  if  he  pleases,  waive  any  proceeding  under  that  section,. 
await  the  termination  of  the  creditor's  action  against  him,  pay 
the  amount  of  the  recovery,  and  then  proceed  by  action  on  the 
deputy's  bond,  or  by  motion  under  the  47th  Section  of  the  said 
chapter  of  the  Code. 

If  the  deputy  is  notified  of  the  creditor's  action  or  motion 
against  his  principal,  it  is  his  duty  to  appear  and  defend  it.  It 
is  in  effect  his  suit  and  his  liability,  and  that  of  his  sureties  is 
as  fully  established  by  the  judgment  as  though  it  were  a  direct 
proceeding  against  the  deputy  himself.  Such  a  judgment  is  a 
judicial  ascertainment  of  the  deputy's  default  or  misconduct, 
which  cannot  be  called  in  question  in  any  subsequent  proceed- 
ing against  the  deputy  and  his  sureties. 

In  such  case  the  action  of  a  sheriff  against  the  deputy  is  not 
on  account  of  the  default  of  the  latter,  but  for  money  paid  un- 
der a  judgment  of  a  court  of  competent  jurisdiction  in  a  suit  to 
which  the  deputy  was  the  real  party.  The  sheriff  is  not  bound 
to  prove  the  default  or  misconduct  of  the  deputy  or  to  show 
when  it  occurred.  These  are  wholly  immaterial  inquiries.  All 
that  is  necessary  for  him  to  do  is,  to  show  the  action  against  him- 
self on  account  of  the  deputy's  default,  the  notification  of  the 
deputy  to  defend,  or  that  he  had  notice  and  did  make  defence,, 
and  the  payment  by  the  sheriff  of  the  amount  of  the  recovery. 

Under  the  said  47th  Section  the  sheriff's  right  of  action  ac- 
crues from  the  time  of  his  paying  the  amount  of  the  recovery 
against  him ;  and  the  obvious  meaning  of  the  language  of  the 
statute,  is,  that  after  he  has  made  such  payment  he  may  bring 
his  action  or  motion  thereafter  against  the  deputy  at  any  time 
within  the  period  prescribed  by  the  statute  of  limitations. 

The  mere  fact  that  the  remedy  is  given  the  sheriff  by  the 
46th  Section  for  his  protection  and  indemnity,  can  impose  no 
obligation  upon  him  to  resort  to  that  remedy  under  the  peril  of 
being  barred  of  a  right  existing  at  common  law  and  under 
another  section  of  the  statute. 

Whenever  a  former  judgment  is  relied  upon  as  a  bar,  whether 
by  pleading  or  in  evidence,  it  is  competent  for  the  plaintiff  to 
show  that  it  did  not  relate  to  the  same  property  or  transaction 
in  controversy,  and  the  question  of  identity  thus  raised  is  a 
matter  of  fact  to  be  decided  upon  the  evidence,  if  the  record  is 


Citations  to  the  Code  of  Virginia.  66 

itself  silent.  And  so  if  the  cause  of  action  is  diversible,  or  the 
pleadings  involve  two  distinct  propositions,  it  is  competent  to 
show  that  only  one  of  them  was  submitted  to  and  passed  upon 
by  the  jury.  Where  the  matters  involved  in  a  second  motion 
were  not  submitted  to  the  jury  on  the  trial  of  the  first  motion, 
or,  if  submitted,  could  not  have  been  legally  adjudicated  by 
them,  no  question  of  estoppel  can  arise. 

Section  911. 
The  reference  to  21  Grat.,  182,  is  to  the  case  of  Lee  County- 
Justices  vs.  Fulkerson,  cited  supra,  Section  910. 

CHAPTEE  XL. 

CHAPTER  XLI. 

CHAPTER  XLII. 

Section  925. 

In  the  case  of  the  Board  of  Supervisors  of  Culpeper  vs.  Gor- 
rell  et  als.,  20  Grat.,  484,  decided  March,  1871,  it  was  held: 
The  board  of  supervisors  of  a  county  have  authority  to  provide 
land  for  building  a  court-house,  clerk's  office,  and  a  jail,  either 
by  purchase  or  proceeding  to  have  it  condemned  in  the  mode 
prescribed  in  the  statute. 

The  board  of  supervisors  of  a  county  have  authority  to  sell 
the  lands  belonging  to  the  county  on  which  the  court-house  and 
other  public  buildings  stood.  It  is  for  the  board  of  supervisors 
to  determine  what  land  they  will  procure  for  the  public  build- 
ing of  their  county;  and  whether  their  discretion  is  wisely  or 
unwisely  exercised  in  the  selection,  cannot  be  inquired  into  in 
the  proceeding  instituted  to  condemn  the  land. 

In  the  act  authorizing  the  condemnation  of  the  land  for  pub- 
he  purposes  (Code,  Chapter  50),  the  tenant  of  the  freehold  re- 
ferred to  in  Section  7  is  the  tenant  in  possession,  appearing  as 
the  visible  owner. 

In  the  case  of  Carroll  County  vs.  Collier,  22  Grat.,  302,  de- 
cided June  22,  1872,  on  p.  310  it  was  said :  In  assumpsit  by 
the  contractor  against  a  county  for  the  price  contracted  to  be 
paid  for  building  a  jail,  the  defendant  pleads  specially  that  the 
buUding  was  not  completed  in  time,  and  that  the  material  used, 
and  the  work,  was  defective,  so  that  it  was  unfit  for  use  as  a 
jail,  and  the  plaintiff  takes  issue  on  this  plea.  Upon  the  trial 
the  defendant  offers  a  witness  to  sustain  the  defence,  when  the 
plaintiff  objects  to  the  evidence,  and  offers  in  evidence  an  order 
of  the  court,  showing  that  the  court  had  appointed  commission- 
ers to  examine  the  buildings,  and,  upon  their  repoi*t  that  it  had 
been  done  according  to  contract,  had  received  it.     Held  :   The 


66  Citations  to  the  Code  of  Virginia. 

plaintiff  having  taken  issue  upon  the  plea,  the  offer  could  not 
operate  as  an  estoppel  when  offered  in  e\idence,  even  if  it  would 
have  been  such  if  set  up  by  replication  to  the  plea,  or  if  the 
trial  had  been  upon  the  general  issue.  The  order  was  not  an 
estoppel,  it  not  being  a  judgment,  and  the  report  of  the  commis- 
sioners not  being  an  award. 

CHAPTEE   XLIII. 

Section  946. 

In  the  case  of  Carpenter  et  als.  vs.  Sims,  3  Leigh,  675,  decided 
May,  1832,  it  was  held:  Though  authority  is  given  to  the 
county  courts  to  open  only  such  new  roads  as  may  be  wanting 
for  a  public  right  of  way  to  some  one  or  more  of  the  places 
mentioned  by  the  statute,  yet  the  purpose  for  which  the  road  is 
wanting  need  not  be  stated  in  the  petition  of  the  applicant  if  it 
appear  in  any  other  part  of  the  record,  or  be  proved  to  the 
court ;  and  if  this  was  a  defect  in  the  petition,  the  party  opposed 
to  the  application,  having  appeared  and  prayed  an  ad  quod  dam- 
num, waived  the  objection. 

In  the  case  of  .Hollins  vs.  Patterson^  6  Leigh,  457,  decided 
November,  "1835,  a  county  court,  without  petition  or  any  of  the 
proceedings  required  by  the  statute  concerning  roads,  makes  an 
order,  summarily,  on  motion,  for  an  alteration  of  a  public  road. 
Held  :  The  court,  as  it  had  no  jurisdiction  to  make  such  order, 
may,  at  a  subsequent  term,  at  the  instance  of  a  party  aggrieved, 
and  on  hearing  of  the  party  on  whose  motion  the  alteration  was 
ordered,  set  aside  the  order  for  alteration,  and  re-establish  the 
old  road. 

Upon  a  controversy  in  court  touching  the  alteration  of  a  pub- 
lic road,  the  evidence  leaves  it  doubtful  whether  the  old  road  or 
the  new  is  preferable,  and  the  judge,  upon  his  own  knowledge 
of  facts,  and  declaring  such  to  be  the  ground  of  his  judgment 
in  the  order,  rejects  the  application  for  the  new  road.  Held : 
There  was  no  error  in  the  judge  in  founding  his  order  on  his 
own  knowledge,  though  that  knowledge  was  not  stated  by  him 
on  oath  as  a  witness  in  the  cause. 

Section  947. 
In  the  case  of  Sentefr  vs.  PagK,  9  Grat.,  260,  decided  August 
24,  1852,  it  was  held :  A  county  court,  having  made  an  order 
establishing  a  public  road,  and  directing  it  to  be  opened,  may 
entertain  and  act  upon  an  application  to  discontinue  the  road 
before  it  has  been  opened. 

Section  948. 
In  the  case  of  Mitchell  vs.  Thornton  et  als.,  21  Grat.,  164,  de- 
cided July,  1871,  it  was  held:  Upon  application  for  a  change  of 
a  road,  the  order  directs  the  viewers  to  view  the  proposed  alter- 


Citations  to  the  Code  of  Virginia.  67 

ations  of  the  road  (describing  it),  and  to  return  to  tlie  court  such 
view  in  the  manner  prescribed  by  law.  It  would  have  been 
more  formal,  and  therefore  better,  to  follow  the  terms  of  the 
law  in  the  order,  but  the  order  is  substantially  and  sufficiently 
conformed  to  it. 

Under  the  present  law  (Code,  chapter  52,  section  6),  the 
viewers  appointed  to  view  the  alteration  proposed  in  a  road, 
and  report  to  the  court,  are  not  required  to  be  sworn.  And 
though  the  order  appointing  them  directs  them  to  be  sworn,  it 
need  not  be  done. 

The  writ  of  an  ad  quod  damnum^  issued  in  such  a  case,  is 
defective  for  not  directing  any  inquiry  as  to  the  damage  to  the 
residue  of  the  tract  beyond  the  peculiar  benefits  which  will  be 
derived  in  respect  to  such  residue  from  the  road.  And  the  in- 
quest taken  on  such  writ  not  making  this  inquiry  is  defective, 
and  for  this  defect  both  the  writ  and  the  inquest  will  be  quashed 
if  the  motion  to  quash  is  made  at  the  proper  time.  In  such  a 
case  the  defendant,  not  having  made  any  motion  to  quash  the 
writ  and  inquest  in  the  county  court,  but  going  to  trial  on  the 
merits,  waived  the  objection  to  the  writ  and  inquest,  and  it 
is  too  late  to  move  to  quash  them  or  any  of  the  proceedings  in 
the  circuit  court. 

Although  in  such  cases  there  is  an  appeal  as  of  right,  and 
viva  voce  the  testimony  is  heard  in  the  circuit  court  on  such  ap- 
peal, yet,  as  a  general  rule,  a  party  must  make  any  objections  he 
may  have  to  the  proceedings  in  the  court  of  original  jurisdic- 
tion ;  and  if  he  permits  such  proceedings  to  progress  to  the  final 
trial  of  the  case,  without  making  the  objection,  he  will  be  held 
to  have  waived  them,  and  cannot  make  them  for  the  first  time 
in  the  appellate  court.  In  such  a  case,  on  appeal  by  the  de- 
fendant, it  is  his  right  and  duty  to  begin,  the  judgment  of  the 
county  court  being  prima  facie  right. 

Section  950. 

In  the  case  of  miiie  vs.  Coleman,  6  Grat.,  138,  decided  July, 
1849,  it  was  held:  A  county  court  professing  to  proceed  under 
the  act  of  1819  in  opening  a  road,  it  is  not  necessary  that  the 
record  of  their  proceedings  shall  show  that  the  county  court 
had  previously  dispensed  with  the  act  of  1835  in  relation  to 
roads,  and  retained  the  act  of  1819.  In  such  a  case,  where  a 
party  who  opposes  the  opening  the  road  should  call  for  the 
production  of  the  previous  order  of  the  county  court  dispensing 
with  the  act  of  1835,  and  spread  the  whole  evidence  on  that 
question  on  the  record,  and  if  he  fails  to  do  so,  it  will  not  be 
presumed  in  an  appellate  court  that  the  county  court,,  though 
professing  to  proceed  under  the  act  of  1819,  acted  without  law- 
ful authority. 


68  Citations  to  the  Code  of  Virginia. 

Section  951. 

In  the  case  of  Leiois  vs.  Washington,  5  Grat.,  265,  decided 
October,  1848,  it  was  held :  No  limitation  to  the  power  of  the 
county  court  to  establish  a  road  is  to  be  found  in  the  degree  of 
accommodation  which  it  may  afford  to  the  public  at  large.  This 
is  a  matter  which  addresses  itself  not  to  the  authority,  but  to  the 
discretion,  of  the  court. 

The  true  limit  to  the  authority  of  the  court  to  establish  a 
road  is  in  the  purpose  for  which  the  road  is  employed.  A  ter- 
minus of  a  proposed  road  must  be  at  the  court-house,  or  a  pub- 
lic warehouse,  landing,  ferry,  mill,  coal  mine,  lead  or  iron  works, 
or  the  seat  of  government,  or  in  an  already  established  road 
leading  to  one  or  more  of  these  places ;  but  the  other  terminus 
may  be  at  any  place,  whether  public  or  private,  or  of  any  de- 
scription, and  the  road  may  accommodate  many  or  one.  The 
county  court  having  established  a  proposed  road,  may  authorize 
a  particular  individual  to  open  it. 

In  the  case  of  The  Comviomvealih  vs.  Kelley,  8  Grat.,  632,  de- 
cided December,  1851,  by  the  General  Court,  it  was  held  :  The 
mere  use  of  a  road  by  the  public  for  however  long  a  time  will 
not  constitute  it  a  public  road.  A  mere  permission  to  the  pub- 
lic by  the  owner  of  land  to  pass  over  a  road  upon  it  is  more  to 
be  regarded  as  a  license,  and  revocable  at  the  pleasure  of  the 
owner.  A  road  dedicated  to  the  public  must  be  accepted  by 
the  county  court  upon  its  records  before  it  can  be  a  public  road. 

If  a  county  court  lays  off  a  road  before  used  into  precincts,  or 
appoints  an  overseer  or  surveyor  for  it,  thereby  claiming  the 
road  as  a  public  road,  and  if,  after  notice  of  such  claim,  the 
owner  of  the  soil  permits  the  road  to  be  passed  over  for  a  long 
time,  the  road  may  be  well  inferred  to  be  a  public  road. 

In  the  case  of  Mitchell  vs.  Thornton  et  als.  21  Grat.,  164,  de- 
cided June,  1871,  it  was  held,  p.  176 :  The  writ  of  ad  quod 
dammim  issued  in  such  a  case  is  defective  for  not  directing  any 
inquiry  as  to  damage  to  the  residue  of  the  tract  beyond  the  pecu- 
liar benefits  which  will  be  derived  in  respect  to  such  residue  from 
the  road ;  and  the  inquest  taken  on  such  writ  and  inquest  will  be 
quashed  if  the  motion  to  quash  is  made  at  the  proper  time. 

The  regular  mode  of  objecting  to  the  inquest  of  the  jury  on 
account  of  the  small  amount  of  the  damages  assessed  is  by  a 
motion  to  quash  the  inquest,  on  which  motion  evidence  will  be 
heard  to  prove  if  the  damage  assessed  is  insufficient.  Until  this 
is  shown  the  inquest  is  conclusive  on  the  question  of  damages. 
This  objection  may,  however,  be  made  on  the  hearing,  and  evi- 
dence may  be  then  introduced  by  either  party  to  show  that  the 
damages  assessed  are  either  adequate  or  inadequate.  So,  in 
such  case  upon  appeal  by  defendant,  he  is  entitled  to  introduce 
evidence  in  the  circuit  court  to  prove  the  inadequacy  of  the 


Citations  to  the  Code  op  Virginia.  69 

damages  assessed  by  the  inquest.  In  assessing  the  damages  in 
such  a  case  the  defendant  is  entitled  to  have  the  value  of  the 
land  taken  for  the  road  without  deduction,  and  such  further 
damages  as  the  residue  of  this  tract  will  sustain  beyond  the 
regular  benefits  which  will  be  derived  to  said  residue  from  the 
road. 

In  the  case  of  Jeter  vs.  Board  et  als.,  27  Grat.,  910,  decided 
November,  1876,  upon  the  petition  of  B.  and  others  for  the 
establishment  of  a  road,  the  county  court,  in  February,  1871, 
made  an  order  that  M.,  road  commissioner,  view  the  route  pro- 
posed for  the  road  and  report,  etc.  In  July,  T.,  the  road  com- 
missioner of  the  toAvnship  in  which  the  road  would  lie,  made  a 
report,  stating  that,  as  to  a  part  of  the  road,  there  was  no  objec- 
tion, and  only  J.  claimed  damages.  There  was  an  order  of 
court  establishing  that  part  of  the  road  not  objected  to,  and  a 
summons  to  J.,  who  appeared  and  asked  for  a  writ  of  ad  quod 
damnum,  which  was  ordered  and  executed  and  returned.  The 
case  was  then  continued,  on  motion  of  J.  At  a  subsequent  term 
J.  moved  the  court  to  quash  the  return  of  the  commissioner, 
which  was  done,  and  then  at  the  same  term  B.  and  the  other 
petitioners  appHed  again  for  the  road,  and  there  was  an  order 
for  a  review,  and  B.,  &c.,  appealed  from  the  order  quashing  the 
report.  Held  :  M.  ha^dng  been  the  commissioner  when  the 
order  directing  the  report  was  made,  and  he  having  been  suc- 
ceeded in  that  office  by  T.,  the  name  of  M.  in  the  order  was  sur- 
plusage, and  it  was  proper  for  T.  to  make  the  report. 

But  if  the  objection  could  have  ever  been  a  good  one,  it  was 
not  made  at  the  proper  time,  and  was  waived  by  J.'s  applying 
for  a  writ  of  ad  quod  damivum,  moving  for  a  continuance  of  the 
case,  and  contesting  it  on  other  grounds. 

The  provisions  of  the  statute  in  relation  to  yards,  gardens,  etc., 
and  as  to  a  map  or  diagram  of  the  route,  are  merely  directory, 
and  if  any  of  them  are  not  complied  with,  objection  to  the  report 
on  that  ground  must  be  made  in  due  time,  or  it  will  be  considered 
as  waived.  In  this  case  it  was  not  made  in  time,  and  was  in 
effect  waived. 

There  may  be  an  appeal  as  of  right  from  an  interlocutory  or- 
der of  a  county  court  in  a  controversy  concerning  the  establish- 
ment of  a  road. 

The  judgment  of  the  county  court  was  final.  As  to  much  the 
larger  part  of  the  road,  it  had  been  established  by  a  previous 
order  of  the  court,  and  the  order  quashing  the  report  put  an 
end  to  the  cause  in  that  court.  The  order  for  another  view  of 
the  route  was  a  new  proceeding. 

In  the  case  of  Taylor  et  als.  vs.  The  CoTnmonwealih,  29  Grat., 
780,  decided  January,  1878,  the  defendants  in  an  indictment 
for  a  nuisance  for  obstructing  a  street  were  the  joint  owners  of 


70  Citations  to  the  Code  op  Virginia. 

a  house  and  lot  of  two  acres,  fronting  two  hundred  and  sixty- 
four  feet  on  Porter  street  in  Manchester.  The  house  was  an- 
cient, and  had  been  held  by  the  defendants,  and  those  under 
whom  they  claimed,  for  more  than  sixty  years,  according  to  its 
present  enclosures.  The  city  council  of  Manchester,  holding 
that  the  said  enclosures  were  in  Porter  street,  directed  that 
they  should  be  removed,  and  the  defendants  obtained  an  in- 
junction to  prevent  it ;  and  this  suit  was  pending  in  the  same 
court.  When  the  indictment  was  called  for  trial,  the  defend- 
ant moved  that  the  case  should  be  continued  until  the  injunc- 
tion suit  was  decided.  Held:  The  indictment  was  the  appro- 
priate remedy  in  such  a  case,  and  the  continuance  was  properly 
refused. 

The  report  of  a  case  in  a  printed  volume  of  reports  of  deci- 
sions of  the  Court  of  Appeals  of  Virginia,  the  original  records 
of  the  case  having  been  destroyed,  held  admissible  in  evidence 
to  show  that  such  a  map  as  that  mentioned  in  the  report  as  Wat- 
kins'  map  actually  existed,  and  was  in  the  papers  in  said  cause, 
and  thereby  to  lay  the  foundation  for  the  introduction,  as  further 
evidence  in  the  cause,  of  a  map  purporting  to  be  and  certified 
as  a  map  of  Manchester  by  the  clerk  of  the  superior  court  of 
chancery  of  the  Richmond  district. 

Copies  of  two  maps  attached  to  two  deeds  for  lots  in  Man- 
chester recorded  in  the  clerk's  office  of  Chesterfield  county,  one 
deed  dated  August  10,  1816,  and  the  other  January  3,  1847, 
held  to  be  admissible  for  the  purpose  of  ascertaining  the  scale 
and  verifying  the  map  of  Manchester,  certified  by  the  clerk  of 
the  superior  court  of  chancery  for  the  Richmond  district,  which 
had  been  previously  admitted  as  evidence,  but  for  this  purpose 
only. 

S.  Taylor,  under  whom  the  defendants  claimed  the  house  and 
lot,  was  a  member  of  the  council  of  Manchester  in  1855.  Held : 
That  certain  proceedings  of  the  council  at  that  time,  when  he- 
was  present,  in  regard  to  what  is  called  the  Percival  survey  of  the 
said  town,  were  admissible  evidence  for  the  purpose  of  showing 
said  S.  Taylor's  connection  with  said  survey. 

William  Byrd  having  laid  off  the  land  comprised  within  certain 
limits  of  the  town  of  Manchester  into  lots  and  streets,  and  made 
a  map  of  the  town  so  laid  off,  showing  the  lots  and  streets,  and 
having  lots  sold  with  reference  to  said  map,  all  the  streets  desig- 
nated on  the  said  map  were  irrevocably  dedicated  to  the  pubhc  ; 
and  the  pubHc  have  the  right  to  have  the  streets  as  designated 
on  that  map,  throughout  their  entire  length  and  width,  thrown 
open  forever,  and  kept  free  from  any  or  all  encroachments  or 
obstructions. 

The  act  of  the  House  of  Burgesses  passed  November,  1769, 
estabhshmg  the  town  of  Manchester  as  laid  off  into  lots  and 


Citations  to  the  Code  of  Virginia.  71 

streets,  was  an  acceptance  on  the  part  of  the  colony  of  Virginia 
of  the  streets  thus  dedicated  to  the  public. 

The  streets  of  the  city  of  Manchester  having  been  dedicated 
to  the  public  by  William  Byrd  when  he  laid  off  the  town,  and 
this  dedication  having  been  accepted  by  the  act  of  the  House 
of  Burgesses  in  November,  1769,  the  streets  are  public  high- 
ways ;  and  any  occupation  of  a  street,  or  a  part  of  the  street,  by 
the  owner  of  an  adjoining  lot,  however  long  continued,  cannot 
give  such  occupant  a  right  to  hold  it,  or  bar  the  right  of  the 
public  to  the  use  of  the  street  to  its  full  width  and  extent. 

In  the  case  of  Flecker  vs.  Rhodes,  30  Grat.,  795,  decided 
October  3,  1878,  it  was  held,  p.  799:  The  General  Assembly 
has  the  power  to  authorize  an  individual  to  build  a  toll- bridge 
over  a  river.  When  the  statute  confers  the  privilege  of  build- 
ing the  toll-bridge,  that  determines  the  question  of  public  con- 
venience, and  the  only  question  to  be  ascertained  by  the  pro- 
ceedings in  the  court  is  the  damages  to  the  owners  of  the  land 
condemned. 

In  the  case  of  Lhikinlioker  vs.  Orayhill,  80  Va.,  835,  decided 
October  1,  1885,  it  was  held:  Easements  follow  land  into  as- 
signee's hands;  division  of  a  dominant  tract  does  not  destroy 
easement.  Owner  of  any  portion  may  claim  right  so  far  as  ap- 
plicable to  his  portion;  provided  provision  does  not  impose 
additional  charge  on  servient  tracts.  If  one  take  conveyance  of 
land  surrounded  by  lands  of  his  grantors  and  others,  he  can 
enforce  a  right  of  way  under  plea  of  necessity  against"  none  but 
his  grantors. 

L.  bought  part  of  the  R.  lands,  knowing  how  they  were  situ- 
ated as  to  public  roads,  and  they  were  entitled  to  a  right  of  way 
in  one  direction  over  G.'s  lands  to  a  public  highway,  and  con- 
tracted with  his  grantors  for  a  right  of  way  out  to  the  public 
road  over  other  lands  than  G.'s.  He  cannot  now  be  permitted 
to  abandon  his  said  rights  of  way  and  have  a  public  road  estab- 
lished for  his  own  exclusive  right,  and  to  the  great  damage  of  G. 
over  G.'s  land  in  another  direction  to  a  public  highway. 

In  the  case  of  Carpenter  et  als.  vs.  Sims,  3  Leigh,  675,  de- 
cided May,  1832,  it  was  held :  The  party  opposed  to  opening  a 
new  road  appears  and  prays  an  ad  quod  damnum,  which  the 
court  awards,  and  appoints  a  day  for  holding  the  inquest ;  the 
defendant  shall  be  presumed  to  be  present  in  court  at  the  time 
the  writ  is  awarded  and  the  day  of  inquest  appointed ;  so  that 
the  sheriff  need  not  give  him  notice  of  the  day  of  the  holding 
the  inquest. 

Section  955. 

In  the  case  of  ^V}dte  vs.  Coleman,  6  Grat.,  138,  decided  July, 
1849,  it  was  held:  It  is  proper  that  the  county  court  should 


72  Citations  to  the  Code  of  Virginia. 

direct  that  the  damages  assessed  by  the  jury  to  the  owner  of 
the  land  through  which  the  road  is  opened,  and  the  cost  of  the 
inquest,  should  be  provided  for  and  paid  out  of  the  county  levy. 
But  it  is  error  to  direct  all  the  costs  of  the  applicant  for  the 
road  to  be  thus  provided  for  and  paid.  His  costs,  except  costs 
of  the  inquest,  should  be  recovered  against  the  contestant. 

Section  989. 

In  the  case  of  County  Court  of  Gloucester  vs.  County  Court  of 
Middlesex,  79  Va.,  15,  decided  March  20,  1884,  a  run  divides 
Gloucester  and  Middlesex  counties,  and  a  swamp  lies  in  Middle- 
sex adjacent  to  the  run.  County  Court  of  Middlesex  notified 
County  Court  of  Gloucester  of  the  necessity  of  a  bridge  over 
the  run  and  a  causeway  over  the  swamp.  Latter  concurred  as  to 
the  necessity,  and  appointed  commissioners  to  confer  with  the 
commissioners  appointed  by  the  former.  The  commissioners 
also  concurred  as  to  the  necessity;  but  those  of  Gloucester 
thought  the  causeway  should  be  made  at  the  sole  expense  of 
Middlesex,  and  so  reported,  and  their  report  was  confirmed. 
The  County  Court  of  Gloucester  refused  to  appoint  commis- 
sioners to  unite  with  those  of  Middlesex  in  letting  the  cause- 
way to  contract ;  thereupon  County  Court  of  Middlesex  applied 
to  the  Circuit  Court  of  Gloucester  for  a  mandamus.  County 
Court  of  Gloucester  demurred.  Held:  The  section  provides 
only  for  a  bridge  or  causeway  between  two  counties,  and  not 
for  a  bridge  between  the  counties  and  a  causeway  whollj^  in  one 
county,  though  adjacent  and  necessary  to  the  bridge.  Glouces- 
ter County  was  under  no  obligation  to  aid  in  making  the  cause- 
way, and  in  such  case  a  mandamus  should  be  denied. 

In  the  case  of  Gloucester  County  vs.  Middlesex  Coxtnty,  88  Ya., 
843,  decided  March  10,  1892,  it  was  held:  A  county  is  not 
Hable  for  any  part  of  the  expenses  of  maintaining  a  causeway 
wholly  in  an  adjacent  county,  though  necessary  to  approach  a 
bridge  over  a  stream  between  the  two  counties.  (This  is  the 
sequel  to  the  above  cited  case  from  79  Va.,  p.  15.) 

Section  990. 
In  the  case  of    The  Dinwiddie  Justices  vs.    The  Chesterfield 
Justices,  5  Call,  556,  decided    November,    1805,  it   was  held: 
There  must  be  a  rule  to  show  cause  before  a  writ  of  mandamus 
can  be  awarded. 

r^?i^®  ^^^^  °^  5ra/i^Zer  vs.  The  Chesterfield  Justices,  5  Call, 
548,  decided  November,  1805,  it  was  held:  A  mandamus  is  the 
proper  remedy  to  compel  the  county  court  to  erect  a  bridge  on 
a  pubhc  road. 

Kecords  are  the  regular  proofs  of  a  public  road ;  but  they 
will  not  be  presumed  without  great  length  of  time  and  a  sug- 
gestion that  they  have  been  lost. 


Citations  to  the  Code  of  Virginia.  73 

In  the  case  of  Gloucester  County  vs.  Middlesex  County,  88 
Va.,  843,  decided  March  10,  1892,  it  was  held:  A  circuit  judge 
ifas,  in  vacation,  power  to  compel  a  county,  by  mandamus,  to 
contribute  to  maintain  a  bridge  or  causeway  over  a  place  be- 
tween it  and  an  adjacent  county. 

CHAPTEE  XLIV. 

Section  1016. 

In  the  case  of  Roche  vs.  Jones  {Sergeant),  87  Va.,  484,  decided 
March  5,  1891,  it  was  held:  This  section  held  not  to  a  town 
having  less  than  five  thousand  inhabitants  and  no  corporation 
court,  notwithstanding  the  provision  that  the  word  "  city  "  shall 
be  construed  to  mean  a  town  of  five  thousand  inhabitants  and 
a  corporation  court. 

Section  1020. 

In  the  case  of  Poulson  vs.  The  Justice  of  Accomac,  2  Leigh, 
743,  decided  November,  1830,  a  justice  of  the  peace  of  the 
county  of  A.  leaves  this  State  with  the  intent  to  establish  his 
residence  in  another  State;  he  remains  in  another  State  nine 
months,  but  does  not  establish  his  permanent  residence  there, 
and  then  he  returns  to,  and  resumes  his  former  residence  in  the 
county  of  A.  Held  :  He  has  no  right  to  resume  the  exercise  of 
his  office  of  justice  of  the  peace  of  A. 

In  the  case  of  The  Coramonwealth  vs.  Tate,  3  Leigh,  802,  de- 
cided July,  1831,  it  was  held :  The  office  of  deputy  sheriff  is 
incompatible  with  the  office  of  justice  of  the  peace,  though  by 
the  statute  law  of  Virginia  the  office  of  high  sheriff  is  not  so, 
and  the  acceptance  of  the  office  of  deputy  sheriff  vacates  the 
office  of  justice. 

In  the  case  of  The  CoTmnonwealth  vs.  Sherrard,  4  Leigh,  643, 
decided  by  the  General  Court  December,  1832,  it  was  held :  By 
the  statute  of  1821-'22,  Chapter  26,  if  a  justice  of  the  peace  is  ap- 
pointed to  and  accepts  an  office  under  the  government  of  the 
United  States,  or  any  other  incompatible  office,  he  thereby  va- 
cates his  office  of  justice  of  the  peace.  His  resignation  of  the  in- 
compatible office  will  not  restore  him  to  the  office  of  justice 
of  the  peace,  nor  can  he  ever  lawfully  exercise  this  office  wdth- 
out  a  new  commission. 

Section  1038. 
In  the  case  of  Jones  cfe  Co.  vs.  The  City  of  Richmohd,  18 
Grat.,  517,  decided  April,  1868,  it  was  held:  On  the  2d  of 
April,  1865,  in  anticipation  of  the  evacuation  of  the  city  of 
Richmond  by  the  Confederate  army,  the  council  of  the  city 
ordered  the  destruction  of  all  the  liquor  in  the  city,  and  under- 
took to  pay  for  it.  The  council,  under  the  charter  of  the  city, 
had  authority  to  make  the  order,  and  the  pledge  of  the  city  of 


L 


74  Citations  to  the  Code  of  Virginia. 

Eichmond  is  responsible  for  the  value  of  the  liquor  destroyed 
under  the  order  of  the  council. 

In  the  case  of  Town  of  Danville  vs.  Siitherlin,  20  Grat.,  555, 
decided  April  18,  1871,  it  was  held :  The  council  of  the  city  of 
Danville  has  authority,  under  its  charter,  to  contract  loans  and 
issue  certificates  of  debts.  In  1863  the  council  sold  the  bonds 
of  the  city  to  be  issued  at  public  auction  for  Confederate  money 
and  for  a  bond  of  $5,000,  bearing  6  per  cent,  interest,  and  pay- 
able at  the  end  of  twenty  years.  The  purchaser  gave  $11,050 
Confederate  currency,  being  at  the  time  as  ten  for  one  of  gold. 
This  is  usury. 

In  the  case  of  Davenport  d;  Morris  vs.  Richmond  City^  81 
Va.,  636,  decided  April  15,  1886,  it  was  held :  Storage  of  gun- 
powder in  a  city  being  dangerous,  its  regulation  is  a  matter 
within  the  power  of  the  corporate  authorities,  and  their  judg- 
ment, as  expressed  in  an  ordinance  requiring  the  removal  of 
powder  magazines,  is  conclusive  upon  the  courts. 

An  ordinance  requiring  the  removal  of  powder  magazines  in 
a  city,  the  sites  whereof  were  sold  by  the  city  council  to  vendees 
for  the  purpose  of  erecting  thereon  such  magazines,  does  not 
impair  the  obligation  of  a  previous  valid  contract  with  that  coun- 
cil, and  does  not  take  private  property  without  compensa- 
tion, but  is  constitutional,  being  a  valid  exercise  of  the  police 
power. 

In  the  case  of  Kehrer  vs.  Richmond  City,  81  Va.,  745,  decided 
April  22,  1886,  it  was  held  :  Such  corporation,  acting  within  the 
scope  of  its  powers  with  reasonable  care  and  skill  in  opening, 
grading,  and  improving  its  streets,  is  not  liable  to  the  adjacent 
owner,  whose  land  is  not  actually  taken,  for  consequential  dam- 
ages to  his  premises,  unless  there  is  a  provision  in  its  charter,  or 
in  some  statute,  creating  the  liability.  It  is  a  damnum  ahsque 
injuria.  Where  the  specifications  of  damages  are  rested  in  the 
declaration  only  upon  the  elevation  of  the  grade  of  the  street 
from  which,  as  alleged,  it  results  that  plaintiff  is  obHged  to 
maintain  a  wall  to  prevent  earth  falling  from  the  street  on  his 
premises  ;  that  ingress  and  egress  is  made  inconvenient  and  un- 
safe ;  that  the  value  of  his  premises  is  diminished ;  that  his 
business  has  been  injured,  and  that  the  flow  of  rain-water  upon 
his  premises  causes  further  damages,  a  demurrer  will  lie. 

In  the  case  of  Green  vs.  Ward  et  als.,  82  Va.,  324,  decided 
September  16, 1886,  by  Section  14  of  its  charter  power  is  conferred 
on  the  city  of  Alexandria  "to  specifically  tax  a  lot  adjoining  a 
street  on  which  paving  is  done  or  a  curbstone  put  down  (whether 
on.  the  sidewalk  or  carriage-way)  not  exceeding  two-thirds  of  the 
expense  of  the  curbstone  or  paving  on  that  half  of  the  street 
opposite  the  lot."  Held  :  This  section  does  not  authorize  a  spe- 
cial assessment  for  street  improvements  to  be  made  a  personal 


Citations  to  the  Code  of  Vieginia.  75 

charge  against  the  owner,  but  only  a  charge  on  the  lot  so  taxed. 
Nor  does  this  section  authorize  a  tax  for  the  grading  of  the 
street,  but  only  for  the  paving  and  laying  down  of  curbstones  on 
the  same.  This  case  is  the  same  cited  as  from  10  Va,  Law 
Journal,  683. 

Section  1042. 

In  the  case  of  Gilkeson  vs.  The  Frederick  Justices,  13  Grat., 
577,  decided  November  18,  1856,  it  was  held :  The  Constitution 
of  Virginia,  Article  4,  Sections  22,  23,  and  25,  in  relation  to  taxa- 
tion and  finance,  relates  to  taxation  by  the  General  Assembly  for 
purposes  of  State  revenue,  and  does  not  apply  to  taxes,  levies,  etc., 
by  counties,  corporations,  etc.,  for  the  local  purposes  of  such 
bodies. 

The  General  Assembly  has  full  power  to  authorize  counties, 
municipal  corporations,  and  the  like,  to  levy  taxes  within  their 
bounds  for  their  peculiar  purposes ;  and  the  mode,  subject,  and 
extent  of  such  taxation  is  not  limited  or  regulated  by  the  pro- 
visions of  the  Constitution  in  relation  to  taxation  and  finance. 

The  act  of  June  7,  1852  (Session  Acts  of  1852,  p.  12), 
authorizing  assessments  in  certain  cases  on  the  offices  of  sheriffs 
and  sergeants,  is  not  in  violation  of  the  Constitution. 

An  assessment  of  four  hundred  dollars  upon  the  sheriff  of 
Frederick  county,  laid  on  the  4th  of  October,  and  to  be  paid  on 
the  1st  of  February  following,  is  not  in  violation  of  the  act  of 
1852.  If  the  time  of  payment  fixed  by  the  court  was  incon- 
sistent with  the  act,  that  would  not  render  the  assessment  void ; 
but  it  would  be  corrected  as  to  the  time  of  payment. 

In  the  case  of  Wades  et  als.  vs.  The  City  of  Richmond,  18 
Grat.,  583,  decided  April,  1868,  it  was  held:  The  act  (Session 
Acts  1866-'67,  p.  635)  extending  the  boundaries  of  the  city  of 
Richmond  is  not  unconstitutional  in  any  of  its  provisions. 

The  act  operates  upon  the  municipal  relations  of  the  inhabi- 
tants of  the  territory  annexed  to  the  city,  but  in  political  elec- 
tions they  are  still  to  vote  as  part  of  the  connty  of  Henrico. 

The  General  Assembly  having  authority  to  extend  the  bound- 
aries of  the  city,  the  justice  or  expediency  of  it  is  not  a  ques- 
tion of  which  the  courts  can  take  jurisdiction. 

That  the  tax-payers  of  the  county  may  have  the  burthen  of 
taxation  increased,  or  the  creditors  may  have  their  security 
lessened  by  the  reduction  of  the  value  of  the  subjects  of  taxa- 
tion, or  that  the  inhabitants  of  the  annexed  district  may  be  sub- 
jected to  heavier  taxation,  does  not  affect  the  constitutionality  of 
the  act. 

Section  1048. 
The  reference  to  18  Grat.,  20,  is  an  error. 


76  Citations  to  the  Code  of  Virginia. 

CHAPTEE  XLV. 

Section  1060. 

In  the  case  of  Beach  vs.  Trudgain  et  als.,  2  Grat.,  219,  de- 
cided July,  1845,  it  was  held :  A  house  in  a  town  may  be  pulled 
down  and  removed,  to  arrest  the  spread  of  a  fire,  when  it  is  in- 
evitable that  the  house  will  take  fire  and  be  consumed  if  it  is 
permitted  to  stand,  and  it  is  inevitable  that  if  it  takes  fire  and 
is  consumed  it  will  spread  the  fire  to  other  houses. 

A  house  in  a  town  may  not  be  pulled  down  and  removed  to 
arrest  the  spread  of  a  fire  if  it  may  be  prevented  taking  fire  by 
the  use  of  the  means  within  the  power  of  the  parties  pulling  it 
down,  or  if  the  use  of  these  means  would  prevent  it  communi- 
cating fire  to  other  houses. 

Parties  pulling  down  a  house  in  a  town  to  arrest  the  spread 
of  a  fire  are  responsible  for  the  damages  thereby  sustained  by 
the  owner,  if  the  house  may  be  prevented  taking  fire  by  the  use 
of  the  means  within  the  power  of  the  parties  pulling  it  down. 

The  declaration  charges  a  trespass  in  entering  the  plaintiff's 
close  and  pulling  down  his  house.  The  plea  says  the  house 
was  in  imminent  danger  of  taking  fire  and  of  communicating 
the  fire  to  other  houses.  The  replication  to  the  plea  avers  that 
by  a  diHgent  use  of  the  means  in  the  power  of  the  defendants 
the  house  might  have  been  prevented  taking  fire.  Held  :  This 
is  no  departure  in  pleading.  It  is  not  necessary  to  state  in  the 
replication  the  means  by  which  the  house  might  have  been  pre- 
vented taking  fire. 


TITLE  XVII. 
CHAPTEE  XLYL 

Section  1068. 

In  the  case  of  Carrie's  Administrators  vs.  The  Mutual  As- 
surance Company,  4th  H.  and  M.,  315,  decided  November,  1809, 
it  was  held:  A  member  of  the  Mutual  Assurance  Company 
against  fire  is  bound  by  an  act  of  assembly  varying  the  terms 
of  the  original  act  of  incorporation,  such  act  being  passed  at 
the  instance  of  a  legally  constituted  meeting  of  the  said  society ; 
although  that  individual  member  was  not  present  at  said  meet- 
ing. When  an  act  of  incorporation  provides  that  there  shall  be 
^' three  directors,  out  of  whom  a  president  shall  be  chosen,"  it 
is  sufficient  if  the  president  be  elected  by  a  legally  constituted 
meeting,  and  at  the  same  time  with  the  other  directors,  without 
having  previously  been  appointed  a  director. 

In  the  case  of  Bank  of  Marietta  vs.  Pindall,  2  Eand.,  465, 
decided  May  31,  1824,  it  was  held :  A  corporation  of  another 


Citations  to  the  Code  of  Virginia.  77 

State  may  maintain  an  action  against  its  debtors  in  the  courts  of 
Virginia.  But  a  bank  of  another  State  cannot  enforce  a  pri- 
mary contract  made  in  Virginia,  as  by  discounting  notes  or 
otherwise. 

In  the  case  of  Taylor's  Administrator  vs.  The  Bank  of  Alex- 
andHa^  5  Leigh,  471,  decided  November,  1834,  it  was  held :  A 
corporation  of  the  District  of  Cohimbia,  or  of  any  State  of  the 
nation,  and  even  a  foreign  corporation,  may  maintain  suits  in 
the  courts  of  Virginia. 

It  is  not  necessary  for  such  corporation  to  show  in  its  decla- 
ration how  it  was  incorporated ;  it  may  prove  that  it  is  incorpo- 
rated under  the  general  issue. 

The  printed  copies  of  the  Acts  of  Congress,  distributed  to  the 
executives  of  the  different  States  to  be  distributed  among  the 
people,  are  proper  evidence  of  the  statutes  therein  contained 
without  other  authentication. 

A  statute  is  alleged  in  pleading  to  have  been  passed  by  Con- 
gress, to-wit:  in  1811;  but  the  statute  given  in  evidence  bears 
date  in  1810.  As  the  date  is  pleaded  under  a  videlicet,  the  vari- 
ance is  immaterial. 

In  the  case  of  Rivanna  Navigation  Co.  vs.  Dawsons,  3  Grat., 
19,  decided  April,  1846,  it  was  held :  A  bequest  to  a  corporation 
of  its  own  stock  is  valid. 

In  the  case  of  Callison  vs.  Hedrick,  15  Grat.,  244,  decided 
July,  1859,  it  was  held :  An  act  authorized  the  construction  of  a 
road  from  M.  to  L.,  and  the  road  was  located  and  a  plat  thereof 
returned  to  the  clerk's  office,  and  an  owner  of  land  through 
which  the  road  was  to  pass  did  not  apply  to  the  county  court 
within  the  year  to  have  her  damages  assessed.  The  road  was, 
in  fact,  made  but  a  part  of  the  distance  and  stopped,  and  at  the 
next  session  of  the  legislature  a  company  was  incorporated  to 
construct  the  remainder  of  the  road.  This  company  is  entitled 
to  make  their  road  upon  the  location  made  under  the  previous 
law,  and  the  owner  of  the  land,  not  having  applied  for  damages 
within  the  year  from  the  return  of  the  plat,  is  precluded  from 
recovering  them. 

In  the  case  of  the  City  of  Richmond  vs.  Long's  Administrator, 
17  Grat.,  375,  decided  April  18,  1867,  it  was  held:  Municipal 
corporations,  in  the  exercise  of  their  political,  discretionary,  and 
legislative  authority,  are  not  liable  for  the  misconduct,  negli- 
gence, or  omissions  of  the  agents  employed  by  them. 

Municipal  corporations,  in  the  discharge  of  ministerial  or 
specified  duties,  assumed  in  consideration  of  the  privileges 
conferred  by  their  charter,  are  liable  for  the  misconduct,  negli- 
gence, or  omission  of  their  agents;  and  this,  though  there  be 
the  absence  of  special  rewards  or  advantages. 

The  city  of  Richmond  is  not  responsible  for  the  loss  of  a 


78  Citations  to  the  Code  of  Virginia. 

slave  admitted  into  the  citj  hospital,  on  the  ground  of  the  neg- 
ligence of  its  agents  at  the  hospital. 

In  the  case  of  Anderson  vs.  The  Commonwealth,  18  Grat.,  295, 
decided  January,  1868,  it  was  held  :  Section  93  of  the  act  of  Feb- 
ruary 15,  1866,  for  the  assessment  of  taxes,  embraces  express 
companies  chartered  by  the  State  of  Virginia,  and  the  present 
stockholders  are  personally  liable  for  taxes  due  to  the  Common- 
wealth from  the  company,  incurred  while  they  were  stock- 
holders. 

Though  the  charter  of  an  express  company  did  not  make  the 
stockholders  personally  liable  for  the  debts  of  the  company,  the 
said  assessment  act,  passed  subsequent  to  the  charter,  has  so  far 
modified  the  charter  as  to  make  them  personally  liable.  The 
charter  reserving  to  the  General  Assembly  the  power  to  modify  or 
repeal  the  charter  was  effectually  done  by  the  act  for  the  assess- 
ment of  taxes,  and  it  is  not  in  violation  of  Section  16,  Article  1, 
of  the  Constitution.  Whether  Section  93  of  the  said  assessment 
act  makes  the  stockholders  of  an  express  company  liable  for 
taxes  due  from  the  company  primarily  or  only  as  guarantors  ? 

In  the  case  of  Davis  vs.  Lee  Camp,  No.  1,  61  F.,  18  South- 
eastern Keports,  839,  decided  January  11,  1894,  under  this  sec- 
tion of  the  Code  every  corporation,  when  not  otherwise  pro- 
vided, has  the  right  to  purchase,  hold,  and  grant  real  estate  and 
personal  property.  The  defendant  corporation,  by  special  act, 
has  power  to  hold  land,  to  provide  a  home  for  invalid  Confed- 
erate veterans,  provided  that  it  shall  not  hold,  at  any  one  time, 
more  than  500  acres.  The  government  was  vested  in  a  board  of 
visitors,  who  purchased  land.  At  a  regular  meeting  of  the 
camp  the  board  of  visitors  was  authorized  to  sell  a  portion  of 
the  tract  purchased,  if  advisable.  Subsequently  the  board  of 
visitors  sold  the  tract  in  question,  which  sale  was  ratified  by  both 
the  board  and  the  camp.  Held  :  That  the  board  of  visitors  had 
full  power  to  make  the  sale,  and  the  purchaser  obtained  a  good 
title. 

Section  1069. 

In  the  case  of  Yeaton  vs.  Bank  of  the  Old  Dominion,  21  Grat., 
593,  decided  January,  1872,  it  was  held:  Under  the  power 
vested  m  the  charter  of  a  private  corporation  to  repeal,  alter,  or 
modify  the  charter,  the  legislature  may  repeal  the  charter,  but 
cannot  modify  it  without  the  consent  of  the  corporation.  But 
if  the  corporation  refuses  to  consent  to  the  modification,  it  must 
discontinue  its  business  as  a  corporate  body. 

The  bank  of  D.,  located  at  Alexandria,  within  the  Federal 
hnes,  has  a  branch  at  P.,  within  the  Confederate  lines.  The 
acts  of  March  9,  1862,  and  May  16,  1862,  of  the  Eichmond 
government  not  having  been  assented  to  by  the  mother  bank, 


Citations  to  the  Code  of  Virginia.  79 

though  acted  on  by  the  branch  at  P.,  did  not  operate  to  amend 
the  charter  of  the  bank  at  D. 

In  the  case  of  City  of  Richinond  vs.  Richmond  da  Danville 
Railroad  Lompany^  21  Grat.,  604,  decided  January,  1872,  the 
charter  of  the  Richmond  k  Danville  Railroad  Company  pro- 
vides that  all  machines,  wagons,  vehicles  or  carriages  belonging 
to  the  company,  with  all  their  works  and  all  profits  which  may 
accrue  from  the  same,  shall  be  vested  in  the  respective  stock- 
holders forever,  in  proportion  to  their  respective  shares;  shall 
be  deemed  personal  estate,  and  exempt  from  any  charge  of  tax 
whatever.  Held :  The  real  estate  owned  and  used  by  the  com- 
pany for  the  purposes  of  their  business  is  embraced  in  the  pro- 
vision, and  is  personal  estate.  All  the  said  property,  real  and 
personal,  is  exempt  from  taxation,  both  State  and  municipal. 

The  exemption  from  taxation  of  the  real  estate  of  the  com- 
pany in  the  city  of  Richmond  is  not  unconstitutional  as  being 
in  conflict  with  the  charter  of  the  city,  previously  granted,  giving 
the  city  the  power  to  tax  real  estate  for  the  purposes  stated  in 
the  city  charter ;  the  city  having  ample  means  of  taxation  left 
for  the  payment  of  her  expenses  and  debts.  A  city  charter  is 
not  a  contract  between  the  State  and  the  city,  securing  to  the 
city  the  absolute  power  of  taxation  beyond  the  control  or  modi- 
fication of  the  legislature. 

The  power  of  exemption  as  well  as  the  power  of  taxation  is 
an  essential  element  of  sovereignty,  and  can  only  be  surrendered 
or  diminished  in  plain  and  explicit  terms.  Municipal  corpora- 
tions are  mere  auxiliaries  of  the  government,  established  for  the 
more  effective  administration  of  justice  ;  and  the  power  of  taxa- 
tion confided  to  them  is  a  delegated  trust. 

In  the  case  of  Silliman  et  als.  vs.  Frederichshurg,  Or.  c&  Charl. 
R.  R.  Co.,  27  Grat.,  119,  decided  February,  1876,  by  statute  the 
charter  of  a  railroad  company  is  extended  to  enable  it  to  com- 
plete its  road,  and  it  is  authorized  to  issue  its  bonds,  registered 
or  coupon,  for  $1,200,000,  and  sell  them  at  less  than  par,  and 
secure  them  by  mortgage  or  deed  of  trust  upon  all  the  property 
and  franchises  of  the  company.  And  by  the  same  act  it  is  pro- 
vided, that  unless  the  yoad  is  completed  to  a  certain  point  by  a 
certain  day,  the  company  shall  forfeit  to  the  State  their  cor- 
porate franchises  and  rights,  together  with  their  road-track  and 
their  road-bed,  and  all  works  and  materials  thereon,  or  other 
property ;  the  State  to  hold  the  same  as  trustee  for  certain  par- 
ties named.  The  company  accepted  the  charter,  issued  $480,000 
of  bonds,  and  executed  a  deed  of  trust  upon  its  property  and 
franchises  to  secure  them.  The  company  failed  to  complete  the 
road  to  the  point  fixed  by  the  time  prescribed,  or,  as  it  would 
seem,  to  expend  any  money  in  its  construction,  and  the  State 
proceeded  to  declare  the  charter  forfeited,  and  to  take  posses- 


80  Citations  to  the  Code  of  Virginia. 

sion  of  the  road  and  other  property  and  franchises  of  the  com- 
pany, and  to  turn  it  all  over  to  the  cestui  que  trust,  who  organized 
another  company.  Persons,  one  of  whom  was  president  of  the 
road,  and  all  who  were  the  principals  in  the  road  when  the  said 
act  passed,  or  were  connected  with  them,  claimed  they  were  the 
holders  of  $323,500  of  the  bonds  issued  and  filed  their  bills  to 
enforce  the  deed  of  trust.  Held :  Under  the  provision  for  the 
forfeiture  of  the  charter,  the  State  took  the  property  and  the 
franchises  of  the  company  free  from  the  trust. 

Upon  the  failure  of  the  company  to  complete  the  road  to  the 
point  fixed  by  the  day  prescribed,  the  forfeiture  became  abso- 
lute and  complete ;  and  the  State  having  entered  and  elected  to 
hold  under  the  forfeiture,  no  inquisition  or  judicial  proceedings 
or  inquest  or  finding  of  any  kind  was  required  to  consummate 
the  forfeiture. 

From  the  relation  of  these  plaintiffs  to  the  company  and  to 
each  other,  they  must  be  held  to  have  had  notice  of  the  terms 
of  the  act  which  authorized  the  execution  of  the  deed  of  trust 
under  which  they  claim,  and  as  no  money  was  expended  on  the 
road,  or,  as  they  claim,  paid  for  interest,  the  strong  presumption 
is  that  the  company  received  no  money  for  the  said  bonds.  The 
plaintiffs  are  not,  therefore,  innocent  purchasers  for  value,  and 
holders  of  said  bonds  Avithout  notice  of  the  provisions  of  the 
said  act. 

Persons  dealing  with  corporations  must  take  notice  of  what 
is  contained  in  the  law  of  their  organization ;  and  they  must  be 
presumed  to  be  informed  as  to  the  restrictions  annexed  to  the 
grant  of  power  by  the  law  by  which  the  corporation  is  author- 
ized to  act. 

In  all  cases,  even  in  cases  of  negotiable  instruments,  a  party 
contracting  with  an  agent  must  inquire  into  his  authority ;  and 
either  a  State  or  a  corporation  is  bound  only  when  its  agents 
keep  within  the  limit  of  their  authority. 

In  the  case  of  the  B.  c&  0.  li.  R.  Co.  vs.  NoeVs  Administrator, 
32  Grat.,  394,  decided  November,  1879,  it  was  held :  A  railroad 
company  incorporated  in  another  State,  which  leases  a  road 
lying  in  this  State,  and  operates  it  as  the  owner  of  the  same,  is 
liable  to  be  sued  in  the  courts  of  Virginia  for  an  injury  which 
occurred  on  said  road  operated  in  this  State,  and  said  foreign 
company  has  no  right  to  remove  the  suit  to  the  United  States 
court. 

Whilst  the  B.  &  O.  E.  R.  Co.,  as  a  corporation  of  the  State  of 
Maryland,  can  have  no  legal  existence  outside  of  that  State, 
yet,  as  the  lessee  of  a  Virginia  railroad  company,  exercising  all 
the  powers  and  functions  of  the  latter,  it  may  be  subject  to  all 
its  duties  and  obligations.  So  acting,  it  may  be  treated  as  a 
Virginia  corporation  cpioad  the  line  of  railroad  under  its  con- 


Citations  to  the  Code  of  Vieginia.  81 

trol  in  Virginia,  so  far,  at  least,  as  its  liability  to  the  citizens  of 
Virginia  is  concerned. 

In  the  case  of  Cowardin  et  als  vs.  Universal  Life  Insurance 
Co.,  32  Grat.,  445,  decided  November,  1879,  it  was  held :  An 
insurance  company,  incorporated  by  the  laws  of  New  York, 
having  its  principal  place  of  business  in  that  State,  which  had 
complied  with  the  laws  of  Virginia  in  relation  to  foreign  insur- 
ance companies  doing  business  in  this  State,  by  making  the 
deposit  and  appointing  a  citizen  of  Virginia  an  agent,  by  power 
of  attorney,  &c.,  as  required  by  the  statute  of  Virginia,  is  not  a 
resident  of  this  State,  within  the  meaning  of  the  foreign  attach- 
ment laws  of  Virginia,  and  the  property  of  said  insurance  com- 
pany is  liable  to  such  attachment  as  a  non-resident. 

The  reference  to  75  Va.,  57,  215  and  263,  are  errors,  as  are 
also  the  references  to  76  Va.,  503  and  956. 

In  the  case  of  Ilaclen  vs.  Farmers  and  Mechanics  Fire  Asso- 
ciatio7i,  80  Va.,  683,  decided  September  24,  1885,  it  was  held: 
Persons  dealing  with  a  corporation  are  effected  with  notice  of 
the  provisions  of  its  charters,  constitution  and  by-laws. 

Section  1072. 

See  the  case  of  Hodges  vs.  8.  cfe  B.  B.  B.  Co.,  88  Va.,  653,  quoted 
Section  1093. 

Section  1074. 

In  the  case  of  James  Biver  and  Kanav^ha  Canal  Co.  vs.  Teays, 
3  Grat.,  270,  decided  July,  1846,  it  was  held :  The  franchise,  as 
well  as  the  property  of  the  citizen,  may  be  taken  for  public 
uses,  upon  making  just  compensation  therefore. 

An  act  directs  the  public  engineer  to  kiy  off  a  road  and 
bridges  thereon,  and  declares  that  upon  a  return  of  the  plats 
thereof  to  the  clerk's  offices  of  the  county  courts  in  which  the 
road  located  lies,  the  land  shall  be  vested  in  the  Commonwealth 
for  the  use  of  the  road.  Held :  That  on  a  compliance  with  the 
law,  the  title  to  the  land  on  which  the  road  is  located,  and  the 
sites  of  the  bridges  are  fixed,  is  vested  in  the  Commonwealth, 
and  that  the  Commonwealth  or  her  grantee  may  maintain  eject- 
ment therefor  against  the  former  owner. 

In  the  case  of  ihc>. Board  of  Supervisors  of  Culjyeper  vs.  Gor- 
rell  et  als.,  20  Grat.,  484,  decided  April,  1871,  it  was  held  :  In 
the  act  authorizing  the  condemnation  of  land  for  public  uses, 
Code,  chapter  56,  the  tenant  of  the  freehold  referred  to  in  Section 
7  is  the  tenant  in  possession  appearing  as  the  visible  owner.  The 
board  of  supervisors,  proceeding  to  liave  certain  land  condemned 
for  the  purpose  of  building  thereon  a  court-house,  clerk's  office 
and  jail,  and  the  persons  whose  lauds  are  proposed  to  be  con- 
demned not  objecting  to  the  report  of  the  commissioner,  other 
citizens  of  the  county  have  no  right  to  make  themselves  parties 
6 


82  Citations  to  the  Code  of  Yirginia. 

in  the  proceeding  and  object  to  the  confirmation  of  the  report. 
In  such  case  the  circuit  court  of  this  county  has  no  jurisdiction 
on  the  appUcation  of  these  citizens  to  award  a  writ  of  error  and 
supersedeas  to  the  judgment  of  the  county  court  refusing  to 
admit  such  citizens  as  parties,  and  confirming  the  report  of  the 
commissioner. 

In  the  case  of  the  Va.  cfc  Tenn.  R.  R.  Co.  vs.  CampbelVs 
Ex'or,  22  Grat.,  437,  decided  July  13,  1872,  it  was  held  :  Under 
the  statute,  the  case  of  a  railroad  company  asking  the  county 
court  to  ascertain  the  compensation  to  a  land  owner  for  the  land 
proposed  to  be  taken  for  its  purposes,  which  has  remained  in 
the  court  for  more  than  one  year  without  being  determined,  may 
be  removed  to  the  circuit  court.  In  such  a  case,  if  tlie  circuit 
court  sets  aside  the  report  of  the  commissioners,  that  court 
should  not  send  the  case  back  to  the  county  court,  but  should 
take  jurisdiction  of  the  case,  and  proceed  in  it  with  the  same 
powers  that  are  vested  in  tlje  county  court  by  the  statute. 

A  land-owner,  or  his  executor,  whose  land  has  been  taken  by 
a  railroad  company  for  its  purposes,  cannot  apply  to  the  court 
for  the  appointment  of  commissioners  to  ascertain  the  compen- 
sation of  the  land-owner  for  the  laud  so  taken.  After  the  com- 
pany has  made  a  motion  for  commissioners  to  ascertain  the  com- 
pensation due  to  a  land-owner,  and  the  commissioners  have 
reported,  and  the  court  has  allowed  the  money  to  be  received  by 
the  clerk,  and  directed  him  to  pay  it  to  the  land- owner,  or  hold 
it  until  the  further  order  of  the  court,  the  executor  of  the  land- 
owner applies  to  the  same  court  for  commissioners  to  ascertain 
such  compensation,  and  this  case  is  removed  to  the  circuit  court. 
The  removal  of  this  case  does  not  bring  up  the  first,  and  neither 
the  circuit  court  nor  this  court  can  inquire  whether  there  is  error 
in  the  action  of  the  court  in  the  first  case.  The  record  in  the 
first  case  may  be  used  by  the  company  in  their  defence  upon  the 
second  motion. 

In  the  case  of  Roanoke  City  vs.  Berkowitz^  80  Ya.,  616,  de- 
cided June  27,  1885,  it  was  held  :  Eeport  of  commissioners  to 
condemn  land  for  municipal  purposes  will  not  be  quashed  on  the 
ground  that  a  commissioner,  appointed  at  the  instance  of  the 
municipality,  was  interested,  where  the  record  does  not  show 
that  the  municipality  was  ignorant  that  he  was  interested  when 
so  appointed.  Ignorance  of  the  attorney  making  the  motion  for 
the  appointment  is  not  evidence  of  the  municipality's  ignorance 
that  the  commissioner  was  interested.  But  if  the  commissioner 
was  interested  and  disqualified,  and  municipality  was  ignorant, 
report  will  not  be  quashed,  if  record  shows  that  the  damages 
assessed  are  not  excessive.  Corporations  condemning  land  un- 
der Code  of  1873,  ch.  56,  sec.  11,  must  take  and  pay  for  the  fee- 
simple,  and  not  merely  an  easement,  except  it  be  a  turnpike 


Citations  to  the  Code  of  Virginia.  83 

company.  This  statute  requiring  the  condemnation  of  the  fee- 
simple  is  not  repugnant  to  the  constitution  ;  and  if  it  was,  mu- 
nicipality cannot  be  heard  to  deny  the  validity  of  the  statute 
under  which  it  has  chosen  to  proceed.  The  ordinance  to  which 
land-owner  refused  assent,  allowing  him  to  build  across  the 
drain  to  be  cut  through  land  proposed  to  be  condemned  for  the 
purpose,  cannot  be  considered  in  assessing  the  damages. 

In  the  case  of  Foder  vs.  City  of  Manchester,  89  Ya.,  92,  de- 
cided June  16, 1892,  it  was  held  :  Defences  allowed  by  the  Code, 
Sections  1074  and  1075,  must  be  made,  if  made  at  all,  in  the  con- 
demnation proceedings. 

Section  1075. 

See  case  of  Foster  vs.  City  of  Manchester,  89  Va.,  *92,  cited 
supra,  Section  1074, 

Section  1076. 

In  the  case  of  Pitzer  vs.  Williams,  2  Rob.,  241,  decided 
August,  1843,  a  person  owning  real  estate  died  intestate,  leav- 
ing a  widow  and  children,  and  dower  not  being  assigned  to  the 
■widow,  she  continued  in  the  mansion  house  and  the  plantation 
thereto  belonging.  Under  the  statute,  notice  was  given  the 
widow  as  the  proprietor  of  the  land,  by  a  person  desiring  to 
build  a  machine  useful  to  the  public,  and  to  abut  his  dam 
against  the  said  land,  that  application  would  be  made  for  a  writ  of 
ad  f/uod  damnuia,  and  the  writ  was  accordingly  awarded,  and  an 
inquisition  returned.  After  which  one  of  the  heirs,  who  resided 
on  the  plantation  with  his  mother,  being  made  a  defendant,  on 
his  motion,  moved  the  court  to  dimiss  the  case  on  the  ground 
that  notice  of  the  application  ought  to  have  been  given  to  him 
as  one  of  the  proprietors,  but  his  motion  was  overruled.  He 
then  offered  to  introduce  evidence  to  prove  that  the  applicant 
did  not  own  the  laud  on  which  he  proposed  to  erect  his  ma- 
chine, but  it  being  proved  that  the  applicant  was  in  possession 
of  the  land,  claiming  title  to  it,  and  had  built  a  house  thereon, 
the  court  refused  to  admit  the  e\adence  so  offered  to  be  intro- 
duced. Held :  There  is  no  error  in  these  proceedings.  For  it 
was  sufficient  that  the  person  making  the  application  was  in  the 
actual  possession  and  occupation  of  the  land  on  which  the  ma- 
chine was  to  be  built,  and  that  the  person  to  whom  notice  was 
to  be  given  was  the  tenant  in  possession,  and  appeared  as  the 
visible  owner. 

In  the  case  of  the  Board  of  Supervisors  of  Gulpeper  vs.  Gor- 
rell  et  als.,  20  Grat,,  484,  decided  April  6,  1871,  it  was  held:  The 
board  of  supervisors  proceeding  to  have  certain  lands  con- 
demned for  the  purpose  of  building  thereon  a  court-house,  a 
clerk's  office,  and  a  jail,  and  the  persons  whose  lands  are  pro- 
posed to  be  condemned  not  objecting  to  the  report  of  the  com- 


84  Citations  to  the  Code  of  Virginia. 

missioners,  other  citizens  of  the  county  have  no  right  to  make 
themselves  parties  in  the  proceeding  and  object  to  the  confirma- 
tion of  the  report. 

In  the  case  of  Hopeys.  Norfolk  and  Western  E.  E.  Co.,  79 
Va.,  283,  decided  August  7, 1884,  it  was  held:  Statute  prescribes 
how  such  company  may  have  land  condemned  for  their  purposes, 
but  if  they  proceed  by  negotiations  in  pais  with  the  life  tenant 
only,  they  can  acquire  only  such  life  tenant's  rights. 

Section  1078. 

In  the  case  of  James  Eiver  and  Kanawha  Co.  vs.  Turner,  9 
Leigh,  313,  decided  April,  1838.  The  charter  of  the  James 
River  and  Kanawha  Company  provides  that  the  assessors  for 
ascertaining  damages  to  proprietors  of  lands  shall  take  into  con- 
sideration the  quahty  and  quantity  of  land  to  be  condemned, 
the  additional  fencing  that  will  be  required  thereby,  and  all 
other  inconveniences  that  will  result  to  the  proprietor  from  the 
condemnation  thereof,  "and  shall  combine  therewith  a  just  re- 
gard to  the  advantages  which  the  owner  of  the  land  will  derive 
from  for  the  use  of  which  the  land  is  condemned."  Held :  That 
the  advantages  to  be  derived  to  the  owner  of  the  land  con- 
demned for  the  companies  use  from  the  improvement  to  which 
the  charter  requires  the  a.ssessors  to  have  regard,  are  such  ad- 
vantages as  particularly  and  exclusively  affect  the  particular 
tract  or  parcel  of  land  whereof  a  portion  is  condemned,  not  ad- 
vantages of  a  general  character  which  may  be  derived  to  the 
owner  in  common  with  the  country  at  large  from  the  improve- 
ment ;  and  it  seems  that  had  the  charter  provided  that  advan- 
tages of  a  general  character,  which  the  owner  of  the  land  con- 
demed  may  derive  from  the  improvement  in  common  with  the 
country  at  large,  should  be  set  off  against  the  actual  value  of 
land  condemned  and  the  actual  advantages  sustained  by  the 
owner,  such  a  provision  would  have  been  unconstitutional. 

(N.  B. — This  last  paragraph  is  entirely  an  ohiter  dictum). 

In  the  case  of  Winchester  (&  Fat.  E.  E.  Co.  vs.  Washi7igton, 
1  Rob.,  67,  2d  ed.,  72.  Under  the  act  passed  April  8,  1831,  to 
incorporate  the  Winchester  and  Potomac  Railroad  Company, 
the  freeholders,  appointed  by  an  order  of  the  county  court  for 
the  purpose  of  ascertaining  the  damages  which  would  be  sus- 
tained by  the  proprietors  of  certain  lauds  through  which  the  rail- 
road was  to  be  opened,  certified,  in  the  form  prescribed  by  the 
act,  that  they  assessed  the  damages  at  the  sum  of  $972,  and 
then  subjoined  the  follo^dng  words  :  "  We  further  declare  that  if 
the  railroad  company  shall  refuse  to  pass  the  water  from  the 
south  side  of  the  road  to  the  north  side  by  a  culvert  west  of  the 
lane,  the  thoroughfare  of  the  farm,  and  return  the  same  by  a 
culvert  on  the  east  side  of  the  lane,  she  (the  proprietor)  shall 


Citations  to  the  Code  of  Vieginia.  85 

receive  the  additional  sum  of  $2,000."  The  report,  upon  being 
returned  to  the  county  court,  was  ordered  to  be  recorded.  An 
action  of  debt  was  afterwards  brought  to  recover  $2,000,  the 
declaration  avemng  that  the  company,  although  requested  so  to 
do,  had  refused  to  pass  the  water  as  aforesaid.  Upon  demur- 
rer to  the  declaration — Held  :  The  action  cannot  be  maintained. 
Per  Stanard,  J.,  the  charter  of  a  company  does  not  warrant  a 
contingent  assessment  of  damages  by  the  commissioners,  and 
does  not  authorize  the  county  court  to  render  a  conditional 
judgment  therefor.  The  court  is  authorized  to  render  such 
judgment  only  as  would  authorize  the  clerk  to  issue  an  execution 
thereon. 

In  the  case  of  Callison  vs.  Iledrick,  15  Grat.,  244,  decided 
July,  1859,  it  was  held  :  An  act  authorized  the  construction  of 
a  road  from  M.  to  L.,  and  the  road  was  located  and  a  plat 
thereof  returned  to  the  clerk's  office  ;  and  an  owner  of  land 
through  which  the  road  was  to  pass  did  not  apply  to  the  county 
court  within  the  year  to  have  her  damages  assessed.  The  road 
was,  in  fact,  made  but  a  part  of  the  distance  and  stopped,  and  at 
the  next  session  of  the  legislature  a  company  was  incorporated 
to  construct  the  remainder  of  the  road.  This  company  is  enti- 
tled to  make  their  road  upon  the  location  made  under  the  pre- 
vious law  ;  and  the  owner  of  the  land  not  having  applied  for 
damages  within  the  year  fi'om  the  return  of  the  plat,  is  pre- 
cluded from  recovering  them. 

In  the  case  of  Wash.,  Cin.  <&  St.  Louis  R.  H.  Co.  vs.  Svntzer, 
26  Grat.,  661,  decided  October  7,  1875,  it  was  held :  Where 
commissioners  are  appointed  by  a  countj^  or  corporation  court 
for  the  purpose  of  ascertaining  what  will  be  a  just  compensation 
to  the  tenant  of  the  freehold  for  land  taken  for  a  work  of  public 
improvement,  it  is  the  duty  of  such  commissioners  to  hear  all 
the  legal  and  relevant  testimony  offered  by  either  party  bearing 
upon  the  question  of  such  compensation.  The  refusal  of  the 
commissioners  to  hear  such  testimony,  when  offered  in  time,  is 
of  itself  sufficient  to  vacate  their  report.  When  such  report  is 
returned  to  the  court,  either  party  may  show  cause  against  its 
confirmation,  upon  the  ground  of  excessive  or  inadequate  dam- 
ages, improper  conduct  of  the  commissioners  in  refusing  or  fail- 
ing to  hear  legal  and  proper  evidence,  or  by  proof  of  any  other 
fact  tending  to  show  that  said  report  ought  not  to  be  confirmed. 
Under  the  statute  all  matters  affecting  the  validity  of  the  report 
and  the  action  of  the  commissioners  are  open  for  investigation 
without  notice. 

On  the  motion  of  the  company,  a  rule  is  made  on  the  tenant 
of  the  freehold  to  show  cause  why  the  report  and  assessment  of 
the  commissioners  made  in  such  a  case  should  not  be  set  aside, 
upon  the  ground  that  said  assessment  is  excessive,  and   why 


L 


86  Citations  to  the  Code  of  Virginia. 

other  commissioners  should  not  make  said  assessment.  Upon 
the  hearing  the  company  will  not  be  confined  to  the  specific  ob- 
jection therein  suggested  to  the  confirmation  of  the  report,  but 
the  company  may  impeach  it  by  showing  that  the  commissioners 
had  improperly  refused  or  failed  to  hear  legal  testimony  offered 
by  the  company  upon  the  question  of  compensation  and  dam- 
ages. If  the  tenant  may  be  surprised  by  the  offer  of  testimony 
on  matters  not  referred  to  in  the  rule,  it  is  competent  for  the 
court  to  continue  the  hearing  to  a  future  day  or  term. 

Section  1079. 

In  the  case  of  Boiling  vs.  The  Mayor,  etc.  of  Petersburg,  3 
Kand.,  563,  decided  December,  1825,  it  was  held,  p.  57'1: 
A  pubhc  highway  only  vests  in  the  Commonwealth  a  right  of 
passage,  but  the  freehold  and  the  profits,  such  as  trees  upon  it 
and  mines  under  it,  belong  to  the  owner  of  the  soil,  who  has  a 
right  to  all  remedies  for  the  freehold,  subject,  however,  to  the 
easement. 

In  the  case  of  8.  V.  i?.  P.  Co  vs.  Bohhisoyi,  82  Ya.,  542,  de- 
cided November  11,  1886,  it  was  held :  Demurrer  lies  to  bill  to 
set  aside  order  made  under  this  section  confirming  report  of 
commissioners  assessing  damages  to  land  owners  for  part  taken 
for  company's  purposes,  and  to  residue  of  tract,  beyond  peculiar 
advantages,  although  bill  avers  that  company  falsely  promised 
to  establish  a  depot  on  said  part,  and  that  by  such  promise  com- 
missioners were  induced  to  assess  less  damages,  and  land  owners 
not  to  except  to  their  report,  the  land  owners  remedy  being  at 
law  for  damages  for  breach  of  promise. 

In  the  case  of  Bohinson  vs.  Crenshaw,  84  Va.,  348,  decided 
January  19,  1888,  it  was  held :  Where  corporation  has  had  land 
condemned  for  its  purposes,  and  doubt  exists  as  to  the  title,  it 
can  acquire  clear  title  only  by  paying  the  damages  into  court 
according  to  the  statutes,  so  that  the  parties  in  interest  may  be 
convened  before  disposal  thereof. 

Section  1080. 

In  the  case  of  Washington,  Cincinnati  and  St.  Louis  Rail- 
road Co.  vs.  Switzer,  26  Grat.,  661,  decided  October  7,  1875,  it 
was  held:  When  commissioners  are  appointed  by  a  county  or 
corporation  court  for  the  purpose  of  ascertaining  what  will  be  a 
just  compensation  to  the  tenant  of  the  freehold  for  land  taken 
for  works  of  internal  improvement,  it  is  the  duty  of  such  com- 
missioners to  hear  all  the  legal  and  relevant  testimony  offered 
by  either  party  bearing  upon  the  question  of  such  compensation., 

The  refusal  of  the  commissioners  to  hear  such  testimonv, 
when  offered  in  due  time,  is  of  itself  sufficient  to  vacate  their 
report. 


Citations  to  the  Code  of  Virginia.  87 

Section  1081. 

In  the  case  of  The  Tv.ckahoe  Canal  Company  vs.  The  Tuckahoe 
and  James  River  Railroad  Company,  11  Jjeigh,  42,  decided 
March,  1840,  it  was  held :  A  navigable  canal  being  constructed 
bj  a  chartered  company  along  the  valley  of  a  stream,  a  company 
is  afterwards  chartered  to  construct  a  railroad  along  the  same 
valley.  If  the  terminii  given  for  the  railroad  be  such  that  it 
may  cross  the  canal,  the  railroad  company  is  authorized  to  lay 
out  its  road  so  as  to  cross  the  canal ;  but  in  such  case,  the  rail- 
road must  be  go  constructed  as  nowise  to  obstruct  or  impair  the 
na^agation,  the  railroad  company  being  liable  to  the  canal  com- 
pany for  all  damages  which  may  result  therefrom. 

Under  the  statute  a  railroad  company  may  have  condemned 
for  its  nse  lands  which  a  chartered  canal  company  has  acquired 
for  its  canal  as  well  as  lands  of  individuals ;  and  if  the  canal 
company  has  only  acquired  a  right  of  way  in  the  lands  occupied 
by  the  canal,  the  railroad  company  may  have  the  lands  con- 
demned for  its  use,  as  the  lands  of  the  original  proprietors, 
subject  to  such  right  of  way. 

In  the  case  of  the  James  River  and  Kanawha  Company  vs. 
Anderson  et  als.,  12  Leigh,  278,  decided  April,  1841,  upon  the 
construction  of  the  charter  of  the  James  River  and  Kanawha 
Company  passed  March,  1832.     Held : 

1.  That  the  company  has  a  right  to  enter  upon  and  occupy 
the  public  streets  of  a  town,  as  well  and  in  like  manner  as  the 
lands  of  individuals,  when  it  shall  deem  the  same  necessary  for 
its  canal  or  other  works,  liable  to  make  compensation  in  dam- 
ages to  any  party  injured. 

2.  That  the  company  may  lawfully  enter  and  occupy  such 
streets  for  its  work  and  proceed  with  its  work  before  instituting 
proceedings  to  ascertain  the  damage  that  may  result  to  others. 

3.  That  it  is  not  competent  to  a  court  of  chancery  to  award 
an  injunction  to  stay  the  proceedings  of  the  company  in  the 
prosecution  of  its  works  of  any  kind,  unless  it  be  manifest,  both 
that  it  is  transcending  the  authority  given  by  the  charter,  and 
that  the  interposition  of  the  court  is  necessary  to  prevent  injury 
that  cannot  be  adequately  compensated  in  damages.  The  two 
circumstances  must  concur  to  waiTant  the  court  in  awarding 
such  process. 

In  the  case  of  Southside  R.  R.  Co.  vs.  Daniel,  20  Grat.,  344, 
decided  March,  1871,  it  was  held :  In  an  action  on  the  case  for 
damages  to  plaintiff's  laud,  there  is  the  plea  of  not  guilty,  on 
which  issue  is  joined,  and  there  is  a  special  plea  to  which  there 
is  a  special  replication  concluding  to  the  country.  To  this  there 
is  a  rejoinder,  and  the  record  does  not  say  that  the  issue  was 
joined  upon  it ;  but  the  parties  go  to  trial,  and  the  subjects  of 
the  special  plea  and  replication  are  contested  before  the  jury 


88  Citations  to  the  Code  of  Virginia. 

wMch  renders  a  verdict  for  the  plaintiff.  No  objection  having 
been  taken  to  the  want  of  joinder  of  issue  in  the  court  below,  it 
seems  that  the  objection  cannot  be  taken  in  the  appellate  court. 

In  such  case,  if  the  subject  of  the  replication  is  such  that  the 
defendant  cannot  rejoin  special  matter  without  a  departure  from 
the  defence  set  up  in  this  plea,  but  must  take  issue  upon  the  re- 
plication, the  non-joinder  of  issue  will  be  cured  by  the  statute. 

Two  actions  on  the  case  are  brought  in  the  same  court  at  the 
same  time,  by  the  same  plaintiff  against  the  same  defendant. 
The  same  act  of  defendant  is  charged  as  the  cause  of  the  dam- 
age in  each  case ;  but  the  damage  in  one  case  is  charged  to  be 
the  plaintiff's  land,  and  in  the  other  to  the  crops  grown  and 
growing  upon  it.  The  case  as  to  the  crops  is  the  first  tried,  and 
the  evidence  is  as  to  the  crops,  and  there  is  a  verdict  and  judg- 
ment for  the  defendant.  This  verdict  and  judgment  cannot  be 
set  up  as  an  estoppel  to  the  plaintiff  in  the  other  action  for 
damages  to  the  land, 

A  railroad  company  has  the  land  of  E.  condemned  for  the 
its  road,  and  the  commissioners  assess  the  damages,  and  their 
report  is  confirmed,  and  the  company  pay  the  amount  of  the 
damages  assessed  to  K.  E.  sells  the  land  to  D.  D.  may  main- 
tain an  action  against  the  company  for  injury  to  his  land  done 
since  the  purchase,  which  would  not  be  foreseen  and  estimated 
for  by  the  commissioners. 

In  such  cases  the  assessment  of  damages  is  only  a  bar  to  an 
action  for  such  injuries  as  could  have  properly  been  included  in 
such  assessment.  The  commissioners  are  bound  to  presume  the 
company  will  construct  its  work  in  a  proper  manner,  and  they 
have  no  right  to  award  damages  upon  the  supposition  that  the 
company  will  neghgently  and  improperly  perform  its  work.  A 
failure  to  do  so  by  the  company  will  therefore  impose  a  liability 
to  any  one  who  may  sustain  any  loss  or  injury  by  reason  of  such 
negligence. 

In  the  case  of  the  Board  of  Supervisors  vs.  Gorrell  et  als.,  20 
Grat.,  484,  decided  April  6,  1871,  it  was  held :  The  board  of  su- 
pervisors of  a  county  have  authority  to  provide  land  for  build- 
ing a  court-house,  a  clerk's  office,  and  a  jail,  either  by  purchase 
or  by  proceeding  to  have  it  condemned  in  the  mode  prescribed 
in  the  statute. 

The  board  of  supervisors  of  a  county  have  authority  to  sell 
the  lands  belonging  to  the  county  on  which  the  court-house  and 
other  pubhc  buildings  stood. 

It  is  for  the  board  of  supervisors  to  determine  what  land  they 
will  procure  for  the  pubhc  buildings  of  their  county,  and  whether 
their  discretion  is  wisely  or  unwisely  exercised  in  the  selection 
cannot  be  inquired  into  in  the  proceeding  instituted  to  condemn 
the  land. 


k 


Citations  to  the  Code  of  Virginia.  89 

In  the  act  authorizing  the  condemnation  of  land  for  the  pub- 
lic purposes,  the  tenant  of  the  freehold  referred  to  is  the  tenant 
in  possession  appearing  as  the  visible  owner.' 

The  board  of  supervisors  proceeding  to  have  certain  land 
condemned  for  the  purpose  of  building  thereon  a  court-house,  a 
clerk's  office,  and  a  jail,  and  a  person  whose  land  is  proposed  to 
be  condemned  not  objecting  to  the  report  of  the  commissioners, 
other  citizens  of  the  county  have  no  right  to  make  themselves 
parties  in  the  proceeding  and  object  to  the  confirmation  of  the 
report. 

In  the  case  of  Manchester  Cotton  Mills  vs.  Toicn  of  Manches- 
ter, 25  Grat.,  825,  decided  January,  1875,  the  authorities  of  the 
town  of  M.  gave  notice  to  the  corporation  of  C.  that  they  would 
remove  three  brick  tenements  held  by  C,  which,  the  authorities 
of  the  toT\ai  claim,  encroach  upon  the  street  of  the  town  of 
Manchester. 

The  corporation  of  C,  and  those  under  whom  they  claim,  have 
been  in  possession  of  the  house  for  more  than  twenty  years,  and 
have'  had  title  to  the  land  much  longer.  The  authorities  claim 
that  the  land  was  dedicated  as  a  street  by  a  previous  owner,  un- 
der whom  C.  claims,  and  this  C.  controverts.  Held  :  Equity  will 
enjoin  the  authorities  of  the  town  of  M.  from  removing  the 
houses  until  the  rights  of  the  parties  are  ascertained.  The  evi- 
dence in  the  cause  leaving  the  rights  of  the  parties  in  doubt, 
equity  cannot  settle  them,  involving,  as  they  do,  the  title  and 
boundaries  of  land,  but  will  enjoin  the  removal  of  the  houses 
until  the  question  of  right  can  be  settled  by  a  trial  at  law.  Such 
relief  equity  will  more  readily  afford  against  corporations  than 
against  private  individuals.  A  provision  in  the  charter  of  M. 
prohibits  the  interference  with  the  authorities  by  injunction, 
unless  they  are  transcending  their  powers.  If  the  lot  in  contro- 
versy be  the  property  of  C.,  the  authorities  of  M.  should  not 
transcend  their  powers  in  removing  the  houses,  and  the  injunc- 
tion is  not  forbidden  by  the  charter. 

In  the  case  of  N.  d?  W.  E.  E.  Co.  et  ah.  vs.  Smoot,  81  Va., 
495,  decided  March  11,  1886,  it  was  held :  Conceding  that  the 
plaintiffs  can  establish  that  they  are  entitled  to  compensation ; 
that  the  injury  they  complain  of  is  such  that  it  cannot  be  ade- 
quately compensated  in  damages,  and  that  it  is,  therefore,  pro- 
per for  a  court  of  equity  to  grant  the  relief  to  which  they  may 
appear  to  be  entitled  ;  yet  it  is  not  proper  for  the  court,  pending 
the  inquiry  into  their  right  to  compensation,  and  before  its 
assessment  by  law,  to  interfere,  by  injunction  or  otherwise,  to 
stay  the  proceedings  of  the  defendant  railroad  companies  in 
laying  or  using  the  tracks  on  the  land  in  respect  to  which  the 
injury  is  alleged  to  be  done  or  threatened,  unless  it  be  "  mani- 
fest "  that  said  company  is  transcending  its  authority,  and  that 


90  Citations  to  the  Code  of  Virginia. 

tlie  interposition  of  the  court  is  necessary  to  prevent  injury  that 
cannot  be  adequately  compensated  in  damages. 

Section  1093. 

In  the  case  of  The  James  River  <&  Kanawha  Co.  vs.  Anderson 
et  als.,  12  Leigh,  278,  decided  April,  1841,  upon  the  construc- 
tion of  the  charter  of  The  James  River  and  Kanawha  Company, 
passed  March,  1832,  held :  1,  That  the  company  has  the  right 
to  enter  upon  and  occupy  the  public  streets  of  a  town  as  well 
and  in  like  manner  as  the  lands  of  individuals,  when  it  shall 
deem  the  same  necessary  for  its  canal  or  other  works,  liable  to 
make  compensation  in  damages  to  any  party  injured,  2,  That 
the  company  may  lawfully  enter  and  occupy  such  streets  for  its 
work,  and  proceed  with  its  work  before  instituting  proceedings 
to  ascertain  the  damage  that  may  result  to  others.  3,  That  it  is 
not  competent  for  a  court  of  chancery  to  award  an  injunction  to 
stay  the  proceedings  of  the  company  in  the  prosecution  of  its 
work  of  any  kind,  unless  it  be  manifest  both  that  it  is  transcend- 
ing the  authority  given  by  the  charter,  and  that  the  interposition 
of  the  court  is  necessary  to  prevent  injury  that  cannot  be  ade- 
quately compensated  in  damages.  The  two  circumstances  must 
concur  to  warrant  the  court  in  awarding  such  process.  [Since 
altered  by  the  statute.] 

In  the  case  of  Hodges  vs.  8.  i&  R.  R.  R.  Co.,  88  Ya.,  653,  de- 
cided January  28,  1892,  it  was  held :  Owners  of  lots  abutting 
on  streets  own  the  fee  in  the  land  to  the  middle  of  the  street, 
subject  to  the  rights  of  the  public  to  travel  over  it.  Locating  a 
railroad  track  on  the  street  is  an  additional  burden,  which  can- 
not be  imposed  without  compensation  to  the  owner. 

The  remedy  for  illegal  entry  by  a  corporation  on  land  is  by 
an  injunction ;  and  plaintiff  is  not  required  to  show  a  case  of 
destructive  trespass  or  irrepairable  damage.  The  slightest  excess 
of  power  is  sufficient;  whether  the  statute.  Section  1072,  forbid- 
ding the  invasion  of  the  owner's  dwelling-house  or  the  space  of 
sixty  feet  about  it  was  by  implication  repealed  by  this  section 
or  not ;  yet  as  in  this  case,  the  railroad  company  did  not  before 
invading  the  street,  the  fee  whereof  was  in  the  complainant,  and 
occupying  it  within  sixty  feet  of  his  dwelling-house,  compensate 
him  therefore  as  required  by  said  section  the  injunction  should 
be  perpetuated. 

Section  1094. 
In  the  case  of  The  Tuckahoe  Canal  Co.,  vs.  The  Tuckahoe  and 
James  River  Railroad  Co.,  11  Leigh,  42,  decided  March,  1840, 
it  was  held :  A  navigable  canal  being  constructed  by  a  chartered 
company  along  the  valley  of  a  stream,  a  company  is  afterwards 
chartered  to  construct  a  railroad  along  the  same  valley ;  if  the 
terminii  given  for  the  railroad  be  such  that  it  may  cross  the 


Citations  to  the  Code  of  "Virginia.  91 

canal,  the  railroad  company  is  authorized  to  lay  out  its  road  so 
as  to  cross  the  canal;  but  in  such  case,  the  railroad  must  be 
constructed  as  nowise  to  impair  or  obstruct  the  navigation,  the 
railroad  company  being  liable  to  the  canal  company  for  all  dam- 
ages which  may  result  therefrom. 

Section  1103. 

I, 

In  the  case  of  Rider  vs.  The  Nelson  and  Albemarle  ZTnion 
Factory,  7  Leigh,  154,  decided  February,  1836,  bill  against  a 
public  company  incorporated  for  a  limited  time,  dismissed  by 
the  court  of  chancery,  and  plaintiff  appeals  from  the  decree; 
pending  the  appeal,  the  charter  of  the  company  expires  by  efflux 
of  time.     Held :  The  appeal  must  abate. 

In  the  case  of  The  Bank  of  Alexandria  vs.  Patton  et  als.,  1 
Kob.,  499,  2nd  edition,  528,  a  bill  in  equity  by  a  corporation 
being  dismissed  at  the  hearing,  and  an  appeal  taken  from  the 
decree,  pending  the  appeal  the  charter  of  the  corporation  ex- 
pires. A  motion  is  made  to  the  appellate  court,  upon  the  au- 
thority of  Rider  vs.  The  Union  Factory,  7  Leigh,  154,  that  the 
appeal  be  entered  as  abated  for  that  cause. 

In  opposition  to  the  motion  it  is  suggested,  that  during  the 
existence  of  the  corporation  it  made  an  assignment  of  its  rights 
in  the  subject  in  controversy.  Held :  The  appellate  court  may 
inquire  whether  the  fact  of  assignment  exists,  as  a  guide  for  its 
action  on  the  motion  to  abate,  and  upon  being  satisfied  of  the 
fact,  may  permit  the  case  to  proceed,  without  noticing  on  the 
record  the  dissolution  of  the  corporation. 

In  the  case  of  May  vs.  The  State  Bank  of  North  Carolina,  2 
Eob.,  56,  decided  May,  1843,  it  was  held:  If  a  corporation  be- 
come extinct  by  the  expiration  of  the  term  of  its  corporate  exis- 
tence, pending  a  suit  at  law  for  a  corporate  demand,  and  that 
fact  be  brought  regularly  before  the  court  in  which  the  suit  is 
pending,  the  action  must  terminate.  It  is  equally  clear  that  if 
after  judgment  in  favor  of  a  corporation  the  corporation  be- 
comes extinct  by  the  expiration  of  the  term  of  existence  granted 
by  the  charter,  no  execution  on  such  judgment  can  regularly  be 
sued  out  in  the  name  of  the  corporation,  and  if  one  be  sued  out, 
it  is  liable  to  be  quashed  on  showing  the  fact  of  the  extinction 
of  the  corporation  before  the  emanation  of  the  execution.  On 
the  other  hand,  if  an  original  judgment  be  rendered  in  favor  of 
a  corporation,  it  could  not  be  regularly  rendered  unless  the  exis- 
tence of  the  corporation  continued.  The  necessary  intendment 
from  the  rendition  of  it  is,  that  the  continued  existence  of  the 
corjDoration  was  either  proved  or  admitted,  and  if  execution  be 
sued  out  on  the  judgment,  the  defendant  being  by  this  intend- 
ment estopped  to  deny  the  existence  at  the  time  of  the  jiidg- 
ment,  would  not,  on  motion  to  quash  the  execution,  be  admitted 


92  Citations  to  the  Code  of  Virginia. 

to  controvert  this  intendment,  and  proof  on  such  motion  of  the 
extinction  of  the  corporation  before  judgmei^t  would  be  inad- 
missible or  unavaihng. 

In  the  case  of  Crews  vs.  Farmers  Bank  of  Yirgima,  for  dbc, 
31  Grat.,  348,  decided  January  30,  1879,  it  was  held,  p.  361 : 
A  bank  having  in  pursuance  of  the  act  of  February  12,  1867, 
conveyed  all  its  property  to  trustees  for  the  purpose  of  closing 
up  its  affairs,  a  suit  may  be  brought  in  the  name  of  the  bank  for 
the  benefit  of  the  trustees  upon  a  note  discounted  by  the  bank 
prior  to  the  execution  of  this  deed. 

In  the  case  of  Pixley  et  als.  vs.  Roanohe  Navigation  Co.  et  als., 
Va.  Eeports,  75,  320,  decided  March  17,  1881,  it  was  held :  A 
cause  of  forfeiture  of  its  charter  by  a  corporation  cannot  be 
taken  advantage  of  collaterally  or  incidentally,  but  can  be  en- 
foiced  only  in  a  court  of  law  by  a  direct  proceeding  against  the 
corporation. 

In  the  case  of  Hamilton  vs.  Glenn,  85  Ya.,  901,  decided 
March  14,  1889,  it  was  held :  Under  this  section  a  corporation, 
though  desolved  or  expired,  may  be  sued  to  enforce  its  liabili- 
ties, and  its  stockholders  are  not  necessary  parties. 

Assignor  of  shares  of  stock  is  still  liable  for  unpaid  subscrip- 
tions, whether  instalments  accrue  before  or  after  assignment. 


TITLE  XVIII. 

CHAPTEE  XLVII. 

Section  1106. 
In  the  case  of  Norwich  Lock  Co.  vs.  Ilockaclay,  89  Ya.,  557, 
decided  January  26,  1893,  it  was  held  :  Defendant  signed  sub- 
scription to  stock  in  a  corporation,  circulated  with  a  prospectus, 
stating  that  the  corporation  was  to  be  located  at  E. ;  that  the 
maximum  capital  was  to  be  $400,000,  and  that  its  purpose  was 
limited  to  "  manufacturing  locks,  bolts,  all  house  hardware,  and 
other  articles  of  a  similar  character."  Later  a  second  pros- 
pectus, under  which  the  corporation  was  afterwards  organized, 
was  circulated  for  signatures,  by  which  it  was  stated  that  the 
corporation  was  to  be  located  outside  of  E. ;  that  the  maximum 
capital  was  to  be  $500,000,  and  the  purpose  to  embrace  a  large 
variety  of  industries.  Defendant  refused  to  sign  this  second 
prospectus.  Held :  The  defendant  was  not  liable  to  plaintiff 
for  stock  he  subscribed  to  under  first  prospectus.  A  material 
change  in  the  purposes  of  a  corporation  as  set  forth  in  the  pros- 
pectus will  release  a  subscriber  thereto  from  liability,  if  made 
without  his  consent. 


Citations  to  the  Code  of  Virginia.  93 

Section  1107. 
In  the  case  of  Leiois's  Adm'r  vs.  Glenn  [Trustee),  84  Va.,  947, 
decided  June   5,   1888,  it  was  held :    Under  this  section  the 
statute  of  Hmitations  does  not  begin  to  run  against  an  action  for 
unpaid  assessments  until  the  time  such  assessment  is  made. 

Section  1114. 
In  the  case  of  Burr's  Ex  or  vs.  McDonald,  3  Grat.,  215,  de- 
cided July,  1846,  it  was  held :  Although  by  the  charter  of  such 
a  company  a  general  meeting  is  to  be  held  at  least  once  an- 
nually, at  such  time  and  place  as  the  by-laws  prescribe,  the 
company  may  hold  other  general  meetings  as  often  as  the  inter- 
ests of  the  company  render  it  necessary ;  and  at  such  general 
meetings  the  stockholders  may  remove  and  appoint  officers  if 
the  welfare  of  the  company  requires  it ;  and  a  fort'ioH  may  this 
be  done  where  the  officer  is  elected  for  a  year,  and  till  a  suc- 
cessor is  appointed,  and  the  year  is  expired.  The  reference  to 
19  Grat.,  592,  is  an  error. 

Section  1120. 

In  the  case  of  Allison  y^.  The  Farmers  Bank  of  Virginia,  6 
Eand.,  204,  decided  March,  1828,  it  was  held :  In  an  action  of 
debt  upon  a  bond  conditioned  for  the  faithful  discharge  of  the 
duties  of  an  office,  the  declaration  need  not  set  forth  the  par- 
ticular persons  from  whom  the  money  was  received,  nor  the  sums 
received  from  each,  nor  the  time  when  the  breaches  were  com- 
mitted, if  it  appear  that  they  occurred  during  the  continuance 
of  the  defendant  in  his  office,  nor  is  it  necessary  to  state  the 
damages  occasioned  by  the  breaches. 

The  sureties  of  an  accountant  of  a  bank  are  not  liable  for 
monies  taken  by  him  from  the  teller's  drawer,  without  his 
knowledge  or  consent,  it  appearing  that  the  accountant  is  not 
entrusted  with,  or  put  in  possession  of  any  monies  of  the  bank 
as  accountant. 

In  an  action  for  the  penalty  of  a  bond,  it  is  not  necessary  to 
state  that,  in  consequence  of  the  refusal  of  the  defendant  to  pay, 
the  plaintifl*  sustained  damage. 

In  the  case  of  Bath's  executor  vs.  McDonald,  3  Grat.,215, 
decided  July,  1846,  it  was  held :  Though  the  election  of  an  offi- 
cer of  such  company  has  been  irregular,  such  election  consti- 
tutes him  the  officer  de  facto,  and  his  acts  done  under  the 
authority  of  the  company,  and  colore  officii,  would  be  binding 
on  the  company,  and  could  not  be  impeached  by  strangers  on 
the  ground  of  want  of  authority. 

Section  1122. 
In  the  case  of  Boof.er  vs.  Yoang,  12  Grat.,  303,  decided  April, 
1855.     A  board  of  directors  of  a  bank  consists  of  seven,  and 


94  Citations  to  the  Code  of  Vikginia. 

they  are  all  present.  Upon  a  vote  for  president  but  five  vote, 
three  of  whom  vote  for  Y.  and  two  for  B.  who  had  been  presi- 
dent the  year  previous.  Under  the  belief  that  it  required  a 
majority  of  the  whole  number  to  elect,  they  postpone  the  elec- 
tion, and  B.  continues  to  act  as  president.  At  a  subsequent 
meeting  they  proceed  again  to  the  election,  when  Y.  receives  the 
three  votes  he  had  received  at  the  former  meeting,  and  votes  for 
himself,  making  the  majority  of  the  whole  number;  B.  receives 
the  two  votes  he  had  received  before,  and  he  votes  for  S. 
Whereupon  Y.  is  declared  to  be  duly  elected,  and  he  proceeds 
to  act  as  president.  Upon  an  application  by  B.  for  a  9nan- 
damus  to  restore  him  to  the  office.  Held  by  two  of  the  judges : 
That  Y.  was  duly  elected  on  the  first  day,  and  whether  or  not 
he  accepted  the  office,  B.  has  no  right  to  it  after  that  time.  One 
judge  held  that  Y.,  not  then  having  insisted  on  it,  it  was  no  elec- 
tion ;  but  that  he  might  vote  for  himself,  and  therefore  he  was 
duly  elected  on  the  last  day,  and  another  judge  held  that  the 
votes  of  both  Y.  and  B.  were  to  be  treated  as  nullities,  and  there- 
fore, that  Y.  received  the  majority  of  the  legal  votes  cast  on  the 
last  day,  and  was  duly  elected. 

In  the  case  of  Addison  et  als.  vs.  Lewis  et  als.,  Blythe  et  als 
vs.  Levjis  et  als.,  75  Va.,  701,  decided  September,  1881,  it  was 
held :  "When  the  lender  of  money  to  the  corporation  is  a  direc- 
tor charged  along  with  others  with  the  control  and  management 
of  the  corporation,  representing  in  this  regard  the  aggregated 
interests  of  all  the  stockholders,  his  obliofation,  when  he  be- 
comes  a  party  to  a  contract  with  the  company,  to  candor  and 
fair  dealings,  is  increased  in  the  precise  degree  that  his  repre- 
sentative character  has  given  him  poAver  and  control  derived 
from  the  confidence  reposed  in  him ;  but  the  general  doctrine 
with  regard  to  this  class  of  contracts  is  not  that  they  Avere  abso- 
lutely void,  but  that  they  are  avoidable  at  the  election  of  the 
party  ^  whose  interest  has  been  so  represented  by  the  party 
claiming  under  it. 

In  the  case  of  Planters  Bank  of  Farmville  vs.  Whittle  et  als., 
78  Va.,  737,  decided  April  24,  1884,  it  was  held:  Directors  are 
bound  to  discharge  their  duties  prudently,  dihgently,  and  faith- 
fully, and  apply  the  assets,  in  case  of  insolvency,  for  the  benefit 
of  creditors  in  preference  to  stockholders  and  other  persons. 

But  they  are  not  technically  trustees,  nor  bound  to  applv  the 
assets  ratably  among  the  general  creditors.  They  may  not"^only 
make  preferences  between  creditors,  but  such  preferences  may 
be  made  in  their  own  favor  if  they  be  creditors.  But  in  such 
cases  they  must  act  mth  the  utmost  good  faith. 

Section  1125. 
In  the  case  of  The  Orange  and  Alexandria  Railroad  Company 


Citations  to  the  Code  of  Virginia.  95 

vs.  Fulveij,  17  Grat.,  366,  decided  April  17,  1867,  it  was  held: 
A  court  of  law  cannot  render  a  judgment  that  defendant  shall 
deliver  to  plaintiff  so  many  shares  of  stock.  Upon  a  contract 
to  deliver  stock  in  payment  of  a  debt  or  otherwise,  a  court  can 
only  award  damages  for  the  failure  to  deliver  it. 

Upon  a  contract  to  deliver  stock,  the  damages  for  the  failure 
to  deliver  it  is  the  value  of  the  stock  at  the  time  it  ought  to  be  ^ 
delivered.  Judgment  for  a  certain  sum  of  money ;  but  it  may 
be  discharged  by  the  transfer  and  delivery,  within  six  months, 
of  certain  stock  at  par.  The  stock  not  having  been  delivered 
in  time,  on  motion  for  execution  on  the  judgment,  the  court 
cannot  presume  that  the  sum  stated  in  the  judgment  is  the 
amount  the  plaintiff  was  entitled  to  recover,  and  rejecting  the 
latter  part  of  the  judgment  as  surplusage,  award  execution 
thereon  for  the  money. 

Section  1127. 

In  the  case  of  Petersburg  Savings  and  Insurance  Co.  vs.  Lxims- 
den,  75  Va.,  327,  decided  February  17,  1881,  it  was  held :  By 
the  Statute,  Code  of  1860,  Chapter  57,  Sections  21,  22,  24,  a  lien  is 
created  upon  the  stock  of  each  stockholder  in  a  joint  stock  com- 
pany for  the  balance  due  upon  his  shares  of  stock ;  and  if  assigned, 
which  may  be  done  with  the  consent  of  the  company,  the  lien  is  not 
then  discharged,  but  the  stock  in  the  hands  of  the  assignee  for 
balance,  which  was  owing  by  the  assignor  upon  the  shares  when 
the  assignment  was  made,  or  which  may  thereafter  become  due, 
may  be  sold  by  the  company  for  such  arrearages,  just  as  it 
might  have  been  sold  if  it  had  not  been  assigned. 

The  charter  of  a  stock  company  pro>ddes  for  the  payment  of 
five  dollars  per  share  when  the  subscription  is  made,  and  the 
residue  thereafter  as  may  be  required  by  the  president  and  di- 
rectors, and  the  corporation  is  made  subject  to  the  provisions  of 
the  Code  as  far  as  they  are  applicable,  and  not  inconsistent  \vith 
the  charter.  And  by  a  by-law  of  the  company,  each  stock- 
holder is  required  to  give  his  note  satisfactorily  endorsed  for 
his  unpaid  stock.  A  stockholder  giving  his  note,  with  an  en- 
dorser for  his  unpaid  stock,  the  unpaid  stock  is  still  a  lien  on 
the  stock,  and  the  endorser  is  entitled  to  have  the  stock  applied 
to  his  relief. 

The  statute  gives  no  lien  to  the  company  on  the  stock  of  a 
stockholder  for  any  other  debts  due  from  him  than  that  which 
is  due  for  unpaid  stock,  and  though  a  by-law  of  the  company 
provides  that  the  interest  of  any  stockholder  shall  be  liable  for 
the  payment  of  all  debts  which  may  be  due  from  him  to  the 
company,  and  if  there  is  more  than  one  debt,  the  board  of  di- 
rectors may  prescribe  which  one  or  more  of  said  debts  shall  be 
paid  out  of  the  stock  of  the  debtor ;  this  by-law  can  only  apply 
to  the  interest  of  the  debtor  stockholder  in  stock  after  the  lien 


96  Citations  to  the  Code  of  Virginia. 

of  the  stock  debt  is  satisfied.  And  the  endorser  on  the  stock 
note  is  entitled  to  have  the  stock  applied  to  pay  that  debt  in 
preference  to  the  other  debts  due  from  his  principal  to  the  com- 
pany. 

In  the  case  of  Lewis'  administrator  vs.  Glenn  {Trustee),  84  Va., 
947,  decided  June  5,  1888.  The  National  Express  Company 
executed  in  Virginia  a  trust  deed  of  all  its  estate,  including 
money  payable  on  assessments  to  trustees,  for  the  benefit  of  its 
creditors,  requiring  payment  of  all  its  debts,  but  reserving  en- 
joj'-ment  for  a  specified  period.  A  decree  entered  in  a  creditor's- 
suit  against  the  company,  to  which,  however,  the  stockholders 
were  not  parties,  made  an  assessment,  or  call,  for  thirty  per 
cent,  on  all  subscriptions,  siibstitutiug  the  plaiutijff  for  the  origi- 
nal trustees,  and  authorized  him  to  collect  such  assessments  by 
suit  or  otherwise.     Held : 

1.  The  trust  deed  must  be  construed  by  the  laws  of  Virginia, 
and  is  valid. 

2.  It  passed  title  to  all  unpaid  subscriptions,  with  power  to 
collect  the  same  to  the  extent  of  call. 

3.  The  decree  binds  not  only  the  company,  but  the  stock- 
holders also,  whom  the  plaintiff,  as  such  trustee  and  assignee, 
may  under  and  also  independently  of  this  statute,  sue  in  his 
own  name  for  the  amount  of  the  call  on  their  subscriptions. 

In  the  case  of  Yanderwerken  vs.  Glenn  {Trustee),  85  Va.,  9, 
decided  June  4,  1888,  it  was  held :  In  suit  wherein  a  corpora- 
tion is  a  party,  the  decree  binds  the  stockholders,  though  they 
be  not  personally  parties ;  and  assessments  made  under  decree 
therein,  payable  to  and  collectible  by  the  trustee  of  the  corpor- 
ation, may  be  sued  for  by  him  in  his  own  name,  and  the  statute 
of  limitations  begins  to  run  against  those  assessments  from  the 
date  of  the  decree. 

In  the  case  of  Hamilton  vs.  Glenn,  85  Va.,  901,  decided 
March  14,  1889,  it  was  held :  Where  trust  deed  executed  by  cor- 
poration provided  that  unpaid  subscriptions  shall  be  payable  to 
trustee,  the  right  to  collect  same  passes,  and  creditors  may  en- 
force them  by  suit,  or,  in  any  event,  the  corporation's  right 
thereto  passes  to  creditors  under  this  section. 

In  the  case  of  Bosher  et  als.  vs.  R.  &  II.  Land  Co.  et  als.,  89 
Va.,  455,  decided  December  8,  1892,  it  was  held  :  Persons  who 
have  been  induced  by  the  same  fradulent  misrepresentations  to 
subscribe  to  the  stock  of  a  corporation,  have  a  common  interest,. 
and  may  join  in  a  suit  for  the  benefit  of  themselves  and  others 
similarly  deceived  to  cancel  their  subscriptions. 

Section  1128. 
For  the  reference  to  75  Va.,  327,  see  case  of  Petershnrg  Sav- 
ings and  Lisurance  Co.  vs.  Lumsden,  supra,  Section  1127. 


Citations  to  the  Code  of  Virginia.  97 

Section  1130.  ^ 

In  the  case  of  Petersburg  Savings  and  Insurance  Co.  vs.  Luins- 
den,  75  Va.  Reports,  327,  decided  February  7,  1881,  it  was^ 
held:  By  the  statute.  Code  of  1860,  Chapter  57,  Sections  21,  22,. 
and  24,  a  hen  is  created  upon  the  stock  of  each  stockholder  in 
a  joint  stock  company  for  the  balance  due  upon  his  shares  of 
stock,  and  if  assigned,  which  may  be  done  with  the  consent  of 
the  company,  the  lien  is  not  discharged  ;  but  the  stock  in  the 
hands  of  the  assignee  for  the  balance,  which  was  owing  by  the 
assignor  upon  the  shares  when  the  assignment  was  made,  or 
which  thereafter  became  due,  may  be  sold  by  the  company  for 
such  arrearages,  just  as  it  might  have  been  sold  if  it  had  not 
been  assigned. 

In  the  case  of  the  Shenandoah  Valley  R.  R.  Co.  vs.  J.  T. 
Griffith  et  als.  ;  The  Pennsylvania  R.  R.  Co.  vs.  Same ;  John 
Donaghxie  &  Brh.  et  als.  vs.  Central  Improvement  Co.  et  als. ," 
Adams,  Ilamner  c&  Co.  et  als.  vs.  The  Shenandoah  Yalley  R.  R. 
Co.  et  als.,  76  Va.,  913— 

1.  Railroads — Unpaid  Subscriptions — Liens  on  Stock — Con- 
struction of  Statute. — Code  of  1873,  Chapter  57,  gives  a  railroad 
company  no  lien  on  paid-up  shares  to  secure  payment  of  unpaid 
subscriptions  for  other  shares.  The  sale  of  such  paid-up  shares 
for  such  purpose  by  the  company  is  unauthorized  by  the  statute, 
and  is  a  nullity. 

2.  Idem. — -Stock  Attachment. — The  shares  of  a  stockholder 
in  a  railroad  company  are  liable  to  attachment,  and  b}'^  virtue 
thereof,  the  attaching  creditor  acquires  a  claim  superior  to  that 
of  a  subsequent  ho)ia  fide  purchaser  of  those  shares  for  value 
without  notice  of  the  attachment. 

Section  1138. 
In  the  case  of  Slaymaker's  Adm'r  vs.  Jaffray  da  Co.,  82  Va.^ 
346,  decided  September  16,  1886,  it  was  held  :  If  the  board  of 
directors  of  a  corporation,  when  it  is  insolvent,  declare  a  divi- 
dend of  net  profits,  the  directors  concurring  in  the  act  in  their 
individual  capacity,  are  jointly  and  severally  liable  to  the  cor- 
poration's creditors  for  the  amount  of  the  capital  stock  so  di- 
vided. 

Section  1145. 
In  the  case  of  Cornhined  Saw  and  Planer  Co.  vs.  Floumoy 
{Seai-etary),  88  Va.,  1029,  decided  April  14,  1892.  Act  Febru- 
ary 10,  1890,  Chapter  54,  Section  1,  provides  that  every  char- 
ter thereafter  granted  under  this  section,  and  every  act  of  incor- 
poration thereafter  passed,  shall  be  inoperative  until  the  pay- 
ment of  a  certain  fee.  Act  February  28,  1890,  Chapter  124, 
Section  1,  amends  the  former  act  and  omits  the  words  "granted 
7 


98  Citations  to  the  Code  of  Virginia. 

under  Code,  Section  1145."     Held :  There  is  no  law  requiring 
the  payment  of  the  fee  in  question. 

Section  1149. 

In  the  case  of  Merchants  Bank  of  Baltimore  et  ah.  vs.  God- 
din  and  Howison  {Trustees)  et  als.,  76  Ya„  503. 

Manufacturing  Corporation — Trust  Deeds  to  Secure  Loans — 
Case  at  Bar. — In  1867  the  U.  M.  Co.  obtained  an  act  author- 
izing it  to  borrow  not  exceeding  $30,000,  without  regard  to  the 
rate  per  cent,  prescribed  by  law,  or  to  Va.  Code  1860,  ch.  57,  sec. 
34.  Then  the  company  executed  coupon  bonds  of  $500  each, 
sixty  in  number,  and,  to  secure  them,  executed  a  trust  deed, 
signed  by  the  president,  and  having  the  corporate  seal  affixed  by 
the  secretary  and  duly  acknowledged,  conveying  to  G.  and  H., 
trustees,  real  estate  and  machinery.  It  was  conditioned  for  the 
sale  of  the  trust  property  on  default  in  the  payment  of  any  of 
the  bonds  which  were  executed  and  issued  by  the  U.  M.  Co. 
Of  these  sixty  bonds  thirty-one  were  purchased  by  the  S.  B.  of 
T.,  and  nine  by  A.  P.  H. ;  the  other  seventy  were  never  issued. 
In  1869  the  U.  M.  Co.,  desiring  to  sell  the  machinery,  induced 
the  S.  B,  of  T.  and  A.  P.  H.  to  release  it  on  assurance  that  the 
said  twenty  bonds  had  not  been,  and  would  not  be  negotiated. 
The  release,  however,  was  executed,  not  only  by  the  S.  B.  of  T. 
and  A.  P.  H.,  but  also  by  K.,  the  president  of  the  XT.  M.  Co., 
who  signed  as  holder  of  twenty  bonds  of  $500  each,  as  collateral 
for  the  payment  of  the  floating  debt  of  the  U.  M.  Co.  In  1879 
the  trustees,  being  required,  sold  the  trust  property  to  F.  for 
$13,500.  F.  excepted  to  the  title,  urging,  among  other  objec- 
tions, that  the  trust  deed  had  not  been  properly  executed  ;  that 
it  infringed  vested  rights  of  the  creditors  of  the  U.  M.  Co.  in 
giving  preference ;  that  the  claim  of  the  holders  of  the  floating 
debts  of  the  U.  M.  Co.  to  the  twenty  bonds  should  be  settled. 
Thereupon  the  trustees  brought  their  bill  to  determine  all  ques- 
tions. The  S.  B.  of  T.,  A.  P.  H.,  and  the  U.  M.  Co.  answered. 
W.  and  the  M.  B.  of  B.  came  in  by  petition,  claiming  benefit 
of  the  twenty  bonds  held  as  collateral  for  payment  of  the  float- 
ing debts,  whereof  they  held  large  parts.  The  cause  having 
been  referred,  the  commissioner  was  directed  to  ascertain  the 
names,  amounts,  and  priorities  of  the  creditors  of  the  IT.  M.  Co. 
entitled  to  participate  in  the  sale  money.  The  commissioner  re- 
ported adversely  to  W.  and  the  M.  B.  of  B.  representatives  of 
the  floating  debts.  They  excepted  to  the  report.  The  court 
below  overruled  the  exception.     Exceptors  appealed.     Held : 

1.  A  deed  of  a  corporation,  executed  by  the  president,  under 
the  seal  of  the  corporation,  is  a  valid  mode  of  executing  the 
deed  of  trust  in  this  case. 

2.  The  act  authorizing  the  U.  M.  Co.  to  borrow  money  as  it 
did,  was  a  valid  and  constitutional  act. 


.  Citations  to  the  Code  of  Virginia.  99 

3.  Independently  of  that  act,  the  lien  created  by  the -trust 
deed  was  valid,  securing  contemporaneous  loans,  and  giving  no 
preference  among  existing  creditors  within  the  meaning  of  V.  C- 
1860,  ch.  57,  sec.  34. 

4.  That  the  S.  B.  of  T.  and  A.  P.  H.,  holders  of  the  only 
bonds  that  were  duly  executed  and  issued  by  the  U.  M.  Co.,  and 
which  have  the  security  of  the  trust  deed,  are  entitled  to  the 
entire  sale  money  fund. 

5.  That  E.'s  executing  the  release  as  he  did  was  neither 
proof  of  an  existing  trust  in  favor  of  the  holders  of  the  floating 
debt  nor  the  creation  of  such  trust,  but  unauthorized,  incon- 
sistent with  the  conditions  of  the  release  by  the  S.  B.  of  T.  and 
A.  P.  H.,  and  inoperative. 

In  the  case  of  Planters  Bank  of  I'a'rniville  vs.  Whittle  et  als., 
78  Va.,  737,  decided  April  24,  1884,  it  was  held  :  Directors  are 
bound  to  discharge  their  duties  prudently,  diligently,  and  faith- 
fully, and  apply  the  assets,  in  case,  of  insolvency,  for  the  benefit 
of  creditor  in  preference  to  stockholders  and  other  persons. 
But  they  are  not  technically  trustees,  nor  bound  to  apply  the 
assets  ratably  among  the  general  creditors.  They  may  not  only 
make  preferences  between  creditors,  but  such  preferences  may 
be  made  in  their  own  favor  if  they  be  creditors ;  but  in  such 
cases  they  must  act  in  the  utmost  good  faith.  Objection  that 
assignments  of  assets  made  by  the  directors  to  pay  debts  for 
which  they  are  individually  bound,  are  void  under  Code 
1873,  ch.  57,  sec.  18,  which  provides  that  "no  member  of 
the  board  shall  vote  on  a  question  in  which  he  is  interested 
otherwise  than  as  a  stockholder,"  must  be  made  in  the  court 
below,  and  cannot  be  raised  for  the  first  time  in  the  appellate 
court. 

Code  1873,  ch.  57,  sec.  63,  providing  that  liens  or  encum- 
brances giving  preferences  to  creditors,  except  to  secure  debts 
contracted  or  money  borrowed  at  the  time  of  creating  the  lien 
or  encumbrance,  shall  enure  to  the  benefit,  ratably,  of  all  the 
creditors  of  the  company  existing  at  the  time,  does  not  prohibit 
the  assignment  of  assets  at  their  face  value  in  discharge  of  the 
company's  indebtedness,  no  lien  being  thereby  created.  Until 
the  appointment  of  a  receiver  and  the  award  of  an  injunction, 
the  management  of  the  affairs  of  the  company  remains  in  the 
hands  of  the  directors,  and  assignments  by  them  in  payment  of 
the  company's  debts  may  be  lawfully  made. 

I  In  the  case  of  Hardy  ( Trustee)  et  als.  vs.  Norfolk  Manufac- 
turing Company  et  als.,  80  Va.,  404,  decided  April  9,  1885,  it 
was  held:  Property  bought  for  and  appropriated  to  the  pur- 
poses, and  paid  for  with  the  funds  of  the  partnership,  is  the 
property  of  the  firm,  though  the  legal  title  be  held  in  the  name 
of  one  of  its  members. 


100  Citations  to  the  Code  of  Virginia. 

As  one  member  of  a  partnership  may  create  a  liability  on  the 
firm,  so  one  member  may  discharge  the  liability  of  the  firm. 

To  the  extent  of  his  stock,  each  stockholder  is  liable  indi- 
vidually for  the  debts  of  the  corporation.  Where  stockholder 
pays  the  debt  of  the  corporation,  and  takes  an  assignment 
thereof  to  himself,  he  cannot  revive  that  debt  by  assigning  it  to 
a  third  party. 

Where  real  estate,  whereon  is  a  lien,  is  conveyed  to  a  joint 
stock  company,  and  a  stockholder  pays  off  the  lien  and  takes  an 
assignment  thereof,  the  lien  is  extinguished  as  to  the  creditors 
of  the  corporation,  and  cannot  be  revived  by  his  assignment 
thereof  to  a  third  party. 

Where  a  vender's  lien  exists  on  his  real  estate  of  the  corpora- 
tion, represented  by  a  past-due  note,  and  the  stockholders  agree 
with  the  creditors  of  the  corporation,  that  the  latter  shall  give 
the  corporation  further  time,  the  corporation  will  satisfy  the 
vender's  lien,  and  convey  its  property  free  from  liens,  in  trust 
to  secure  those  creditors,  and  one  of  the  stockholders  shall 
satisfy  that  Hen  and  take  an  assignment  thereof  to  himself,  he 
is  estopped  from  claiming  that  lien  as  his  own  propert}^  and  an 
assignee  from  him  with  notice,  if  the  note  be  not  past  due, 
stands  in  no  better  position  than  his  assignor;  and  the  trust 
deed  lien  of  the  creditors  hath  precedence. 

If  a  deed  hath  a  date,  the  law  presumes  it  to  have  been  de- 
livered at  that  date,  and  this,  though  it  was  acknowledged  for 
registry  at  a  subsequent  time.  But  this  presumption  of  law 
must  yield  to  proof  to  the  contrary. 

If  a  chartered  company  creates  a  lien  on  its  property  for  the 
purpose  of  giving  preference  to  one  or  more  of  the  creditors  of 
the  company  over  any  other  creditor  (except  to  secure  a  debt 
contracted  at  the  time),  such  lien  shall  enure  to  the  benefit,  rata- 
bly, of  all  the  creditors  existing  at  the  time  of  the  creation  of 
the  lien.  So  where  a  debtor,  under  contract  made  before  the 
creation  of  the  lien,  is  omitted,  and  after  that  time  obtains  a 
judgment  for  the  unliquidated  damages  for  the  breach  of  the 
contract,  the  lien  enures  for  his  benefit,  ratably  with  the  other 
creditors. 

CHAPTEE  XLVIIL 

Section  1159. 
_  In  the  case  of  Booher  vs.  Young  et  als.,  12  Grat.,  303,  de- 
cided April,  1855,  it  was  held :  A  majority  of  the  directors  of  a 
bank  constitute  a  board  to  do  business ;  and  if  in  the  election  of 
a  president  a  majority  vote,  the  person  receiving  the  majority 
of  the  votes  cast  is  duly  elected. 

A  board  of  directors  of  a  bank  consists  of  seven,  and  thev  are 
all  present.     Upon  a  vote  for  president  but  five  vote,  three  of 


•Citations  to  the  Code  of  Vikginia.  101 

whom  vote  for  Y.,  and  two  for  B.,  who  has  been  president  the 
year  previous.  Under  the  belief  that  it  required  a  majority  of 
the  whole  number  to  elect,  they  postpone  the  election,  and  B. 
continues  to  act  as  president.  At  a  subsequent  meeting  they 
proceed  again  to  the  election,  when  Y.  receives  the  three  votes 
he  had  received  at  the  former  meeting,  and  votes  for  himself, 
making  a  majority  of  the  whole  number;  B.  receives  the  two 
votes  he  had  received  before,  and  he  votes  for  S.  Whereupon 
Y.  is  declared  to  be  duly  elected,  and  he  proceeds  to  act  as 
president.  Upon  an  application  by  B.  for  a  matidamus  to  re- 
store him  to  office,  held  by  two  of  the  judges,  that  Y.  was 
duly  elected  on  the  first  day,  and  whether  or  not  he  accepted 
it,  B.  had  no  right  to  it  after  that  time.  One  judge  held  that 
Y.,  not  then  having  insisted  on  it,  it  was  no  election;  but  that 
he  might  vote  for  himself,  and  therefore  he  was  duly  elected  on 
the  last  day.  And  another  judge  held  that  the  votes  of  both 
Y.  and  B.  were  to  be  treated  as  nullities,  and  therefore  Y.  re- 
ceived a  majority  of  the  legal  votes  cast  on  the  last  day,  and 
was  duly  elected. 

Section  1161. 

The  reference  to  4  Band.,  132,  is  evidently  an  error,  as  no 
case  affecting  this  point  appears  there. 

In  the  case  of  Ford's  Administrator  vs.  Thornton,  3  Leigh,  695, 
decided  May,  1832,  W.  G.,  having  contracted  a  debt  to  a  bank 
by  note,  payable  sixty  days  after  date,  discounted  by  the  bank 
for  his  accommodation,  dies  before  the  note  comes  to  maturity, 
having  on  deposit  in  the  bank  at  the  time  of  his  death  a  sum 
of  money  exceeding  the  amount  of  the  note.  Held :  That  in 
case  W.  G.'s  estate  proves  insolvent,  the  bank  has  a  right  in 
equity  to  retain  the  amount  of  his  note  out  of  the  money  it 
held  for  him  on  deposit,  whether  there  be  debts  of  W.  G.  of 
superior  dignity  to  the  debt  he  owed  the  bank  or  not;  equity  in 
such  case  regarding  the  bank  as  debtor  to  W.  G.  only  for  the 
excess  of  liis  money  on  deposit  above  the  contents  of  the  note 
(Dubitante  Brook,  J.),  if  it  appeared  that  the  decedent's  estate 
owed  debts  of  superior  dignity. 

In  the  case  of  Crura])  vs.  Trylittle,  5  Leigh,  251,  decided 
April  ]  834,  the  Farmers  Bank  of  Virginia  discounted  a  note  for 
six  thousand  dollars,  payable  on  its  face  sixty  days  after  date, 
for  accommodation  of  the  maker;  it  was  understood  that  this 
accommodation  would  be  continued  indefinitely,  till  it  should 
suit  the  convenience  of  the  bank,  or  of  the  party  to  discontinue 
it,  the  bank  reserving  the  right  to  discontinue  it  at  its  own  dis- 
cretion or  pleasure,  and  the  party  also  having  the  right  to  dis- 
continue it  at  pleasure,  and  that  for  the  purpose  of  so  continu- 
ing it,  the  note  should  be  renewed  from  time  to  time ;  the  ac-' 
commodation  was,  in  fact,  continued  upon  such  renewed  notes 


102  CrrATioNs  to  the  Code  op  Virginia. 

from  the  21st  April,  1825,  to  the  4th  May,  1826 ;  the  bank,  in 
discounting  the  first  note,  deducted  and  retained  to  itself  the  in- 
terest for  sixty-four  days;  i.  e.,  for  the  time  the  note  had  to  run, 
including  the  days  of  grace,  counting  the  interest  from  the  day 
of  the  date  to  the  last  day  of  grace,  both  inclusive,  and  in  dis- 
counting the  second  note  made  on  the  last  day  of  gi'ace  of  the 
first,  deducted  and  retained  to  itself  the  interest  for  sixty-four 
days  counting  from  the  day  of  the  date  of  the  second  and  last 
day  of  grace  on  the  first,  to  the  last  day  of  grace  of  the  second 
note,  both  inclusive,  and  so  on  upon  each  renewed  note  succes- 
sively to  the  end  of  the  transaction ;  so  that  the  bank  in  fact  re- 
ceives double  interest  for  every  sixty-fourth  day,  and  this  was  in 
conformity  with  the  known  usage  of  the  Farmers'  Bank,  and  of 
all  the  banks  of  Virginia.  Held :  The  transaction  is  in  no  wise 
usurious. 

In  the  case  of  JRohinson  vs.  Gardiner  et  als.,  18  Grat.,  509,  de- 
cided May  9, 1868,  it  was  held,  p.  516  :  Upon  the  force  construc- 
tion of  the  act  of  February  12,  1866  (Session  Acts  1865-'66, 
p.  204),  entitled  an  act  requiring  the  banks  of  this  Common- 
wealth to  go  into  liquidation,  all  the  creditors  of  a  bank  not  hav- 
ing a  specific  lien  upon  property  of  the  bank  are  placed  upon 
the  same  footing,  and  are  entitled  to  share  the  assets  ratably. 
The  General  Assembly  having  reserved  the  right  to  alter  or  re- 
peal the  charter  of  the  bank,  the  act  is  not  obnoxious  to  the 
charge  of  interfering  with  vested  rights,  or  impairing  the  obli- 
gations of  contracts. 

A  deposit  of  money  in  a  bank  is  a  loan,  and  not  a  bailment. 

Page  516,  same  case.  Depositors  have  no  priority  over  note- 
holders. 

CHAPTEE  XLIX. 
CHAPTEE  L. 

Section  1181. 

In  the  cases  of  Wilson  vs.  Spencer,  McGuire  vs.  Ashhy,  Snyder 
vs.  Dailey,  1  Eand.,  76,  decided  Api-il,  1822,  it  was  held :  Al- 
though the  act  of  February,  1816,  respecting  unchartered  banks, 
was  suspended  by  the  acts  of  November,  1816,  yet  the  action  of 
1805  remained  in  force.  Therefore,  no  action  brought  by  an 
unchartered  bank  on  a  bond  given  for  bank  notes  emitted  by  the 
said  bank  can  be  sustained. 

A  court  of  equity,  as  well  as  a  court  of  law,  will  interfere  to 
prohibit  the  effects  of  contracts  made  in  violation  of  laws  enacted 
for  the  public  good.  The  principle  in  pari  delicto  does  not  ap- 
ply to  cases  in  which  the  act  complained  of  is  interdicted  by 
the  positive  provisions  of  the  statute.  The  person  who  merely 
takes  the  notes  of  an  unchartered  bank  in  payment  may  not  be 


Citations  to  the  Code  of  Virginia.  103 

as  culpable  as  the  institution  which  issues  them.  These  princi- 
ples apply  as  well  to  contracts  prohibited  under  penalties  as  to 
those  expressly  declared  void  by  statute. 

In  the  case  of  BerksJdre  vs.  Evans  et  als.,  4  Leigh,  223,  de- 
cided January,  1833,  it  was  held :  A  private  unchartered  com- 
pany associated  for  the  purpose  of  carrying  on  business  as  a  bank, 
though  such  associations  are  contrary  to  the  law,  shall  be  enter- 
tained in  a  court  of  chancery  in  a  suit  against  its  cashier  for  an 
account  of  his  agency. 

Section  1182. 

There  is  no  such  page  as  735  in  the  10  Leigh. 

In  the  case  of  Ilamtrmnck  vs.  Selden,  Withers  <&  Co.,  12  Grat., 
28,  decided  January,  1855,  it  was  held  :  To  an  action  of  debt  on 
a  note  alleged  to  have  been  made  and  discounted  by  the  plain- 
tiffs in  Virginia,  but  made  payable  at  a  bank  out  of  the  State,  a 
plea  that  the  plaintiffs  are  an  unchartered  banking  company, 
issuing  and  circulating  their  own  paper  notes  or  bills  as  cur- 
rency, contrary  to  law  and  public  policy,  sets  up  a  good  defence 
to  the  action  ;  so  in  such  a  case  a  plea  that  the  consideration  of 
the  note  declared  on  was  the  bank  paper  of  the  plaintiffs,  un- 
lawfully issued  by  them  as  currency,  they  being  an  unchartered 
banking  company,  presents  a  good  defence  to  the  action. 

CHAPTER  LL 

Section  1185. 

For  the  references  to  cases  affecting  this  section,  see  Sections 
1068  and  1069. 

Section  1201. 

In  the  case  of  Wilso7i  vs.  C.  <&  O.  E.  E.  Co.,  21  Grat.,  654, 
decided  January,  1872,  it  was  held  :  The  C.  &  O.  R.  R.  Co.  is  the 
Virginia  Central  Railroad  Company  under  another  name,  and  is 
liable  upon  any  contract  or  for  the  negligence  of  the  Virginia 
Central  Railroad  Company.  A  railroad  company  is  liable  as  a 
common  carrier  for  the  baggage  of  a  passenger  to  the  same  ex- 
tent, if  the  passenger  is  travelling  with  his  baggage,  as  if  it  were 
carried  without  him. 

Under  the  contract  between  the  Virginia  Central  Railroad 
Company  and  Trotter  &  Bro.,  stage  proprietors,  for  the  carriage 
by  the  latter  of  passengers  from  the  terminus  of  the  railroad  to 
the  White  Sulphur  Springs,  Trotter  <fe  Bro.  are  the  agents  for 
the  railroad  company,  and  the  company  is  liable  for  the  loss  of 
the  baggage  of  a  passenger  by  Trotter  <k  Bro.  Though  the  con- 
tract stipulates  that  each  party  shall  be  responsible  for  losses 
occurring  on  their  part  of  the  line,  the  railroad  company  is  re- 
sponsible for  the  loss  of  a  passenger's  baggage  by  the  stage 
line. 


104  Citations  to  the  Code  of  Virginia. 

Through  passengers  from  Eichmond  to  the  White  Sulphur 
Springs  are  allowed  to  stay  all  night  at  the  terminus  of  the 
road,  and  go  on  in  the  stages  the  next  morning.  Though  a  pas- 
senger takes  her  baggage  with  her  to  the  hotel  where  she  stays, 
yet  if  she  the  next  morning  brings  it  with  her  to  the  stage  and 
commits  it  to  the  agent  of  the  line,  and  it  is  lost,  the  railroad 
company  is  liable  for  the  loss.  Though  the  through  ticket  given 
to  the  passenger  at  Eichmond  specifies  on  its  face  that  each 
party  to  the  contract  is  only  liable  for  losses  on  their  part  of 
the  line,  the  railroad  company  is  liable  for  the  losses  on  the 
stage  line. 

To  restrict  the  Hability  of  a  railroad  company  as  a  common 
carrier  for  the  loss  of  baggage  of  a  passenger,  there  must  be 
proof  of  actual  notice  to  the  passenger  of  each  restriction  before 
the  cars  are  started,  and  an  endorsement  on  the  ticket  given  to 
the  passenger  is  not  enough,  unless  it  is  shown  that  he  knew  its 
purport  before  the  cars  started. 

In  the  case  of  R,  F.  &  F.  E.  E.  Co.  vs.  Ashhy,  79  Va.,  130, 
decided  May  8,  1884,  it  was  held:  When  a  railroad  company 
has  sold  a  passenger  a  ticket  to  a  particular  station,  it  has  no 
right  to  refuse  to  stop  its  train  there,  and  is  liable  for  such  re- 
fusal. And  a  ticket  from  one  designated  station  to  another  is 
good  for  any  intermediate  station  at  which,  by  the  regulations 
of  the  company,  the  train  regularly  stops. 

Section  1202. 

In  the  case  of  Norfolk  &  Western  Emlroad  Company  vs. 
Irvine,  84  Va.,  533,  decided  February  16,  1888,  it  was  held : 
Plaintiff  injured  by  railroad  company's  refusal  to  cany  his  bag- 
gage is  not  limited  to  a  recovery  of  the  penalty  prescribed  for 
such  refusal  by  this  section,  but  under  Section  2900  may  recover 
the  amount  of  the  actual  damage. 

In  the  case  of  Norfolk  c&  Western  Eailroad  Company  vs. 
Pendleton,  86  Va.,  1004,  decided  September  15, 1890,  it  was  held : 
A  State  has  the  right  to  limit  reasonably  the  amount  of  charges 
by  a  railroad  company  for  the  transportation  of  persons  and 
property  within  its  own  jurisdiction,  unless  restrained  by  some 
contract  in  the  charter,  or  unless  what  is  done  amounts  to  a 
regulation  of  foreign  or  interstate  commerce. 

Section  1233. 
In  the  case  of  Alexandria  &  Fredericksburg  Eailway  Com- 
pany's Trustees  vs.  (Graham  et  als.,  31  Grat.,  769,  decided  April 
24,  1879,  it  was  held,  p.  781 :  This  section  appKes  expresslv 
and  only  to  a  sale  under  a  deed  of  trust,  or  mortgage,  by  a  com*^- 
pany  on  all  its  works  and  propertv,  and  not  merelv  on  a  specific 
pait  thereof. 


k 


<IIlTATIONS  TO  THE  CODE  OF  ViEGINIA.  105 

In  the  case  of  Karn  &  Hickson  vs.  Rorer  Iron  Oo.,  86  Va., 
754,  decided  April  3,  1890,  it  was  held:  Where  no  objection  was 
made  below  to  a  decree  of  sale  before  liens  were  ascertained, 
«uch  exception  cannot  be  made  here.  Where  sale  is  confirmed 
without  objection,  it  is  presumable  the  property  brought  its 
full  value.  Where  sale  is  made  under  a  decree,  it  is  not  neces- 
sary that  it  should  be  advertised  as  directed  in  the  trust  deed. 
Where  sale  is  decreed  in  a  creditor's  suit,  it  matters  not  that 
the  creditor  that  brought  the  suit  has  parted  with  his  interest 
before  the  decree,  as  all  the  creditors  are  deemed  plaintiffs. 
After  sale  is  confirmed,  it  will  not  be  set  aside,  except  for  fraud, 
mistake,  or  surprise,  or  like  causes. 

Section  1234. 

In  the  case  of  The  Washington,  Alexandria  cfe  Georgetown  Rail- 
road Company  vs.  Alexandria  c&  Washington  Railroad  Company, 
19  Grat.,  592,  decided  February  14, 1870,  by  the  military  court  of 
appeals,  it  was  held :  The  Alexandria  and  Washington  Railroad 
Company  may  make  a  deed  on  their  property  to  secure  certain 
bonds,  and  it  provides  that  if  the  trustee  becomes  incapable  of 
acting,  the  court  of  record  of  Alexandria  county,  upon  the  ap- 
plication of  three-fifths  of  the  holders  of  the  bonds,  or  on  notice 
to  the  president,  or  any  director  of  the  company,  may  appoint 
another  trustee.  The  trustee,  president,  and  directors  go  into 
the  enemy's  lines  and  remain  there  during  the  war.  An  order 
of  the  court  of  Alexandria  county,  substituting  another  person 
as  trustee  without  notice,  is  null  and  void,  and  a  sale  made  by 
such  substituted  trustee  is  null  and  void. 

For  the  reference  to  31  Grat.,  781,  see  the  case  of  Alexandria 
cfe  Frederick slnirg  Railway  Company's  Tr\istees  vs.  Graham  et  als., 
cited  supra,  1233. 

See  case  of  Karn  cfe  Hickson  vs.  Rorer  Iron  Co.,  86  Va.,  754, 
cited  supra,  1233. 

Section  1243. 

In  the  case  of  Redd  et  als.  vs.  The  Supervisors  of  Henry 
County,  31  Grat.,  695  and  699,  decided  March,  1879,  it  was 
held :  Though  the  act  of  January  15,  1875  (Session  Acts  1874, 
Chapter  37,  p.  29),  provides  a  mode  by  which  the  qualified  voters 
of  a  county  or  corporation  may  contest  the  due  returns  of  the 
election  or  decision  of  the  voters  of  said  county  or  corporation 
upon  the  question  whether  the  county  or  corporation  shall  sub- 
scribe to  the  stock  of  an  internal  improvement  company,  a  court 
of  equity  still  has  jurisdiction  of  the  question  upon  a  bill  filed 
by  fifteen  or  more  of  the  citizens  and  tax-payers  of  the  county 
or  coi*poration,  and  to  enjoin  the  issue  of  the  bonds  of  said 
county  or  corporation  in  payment  of  said  subscription,  if  the 
proceeding  has  not  been  properly  conducted. 


106  Citations  to  the  Code  of  Virginia, 

In  the  proceedings  under  the  statute  (Code  of  1873,  chapter  61, 
sections  62,  63,  64,  65)  in  relation  to  subscriptions  by  a  county 
or  corporation  to  the  stock  of  an  internal  improvement  com- 
pany, the  provisions  of  the  law  must  be  strictly  pursued ;  but  a 
literal  compliance  in  every  particular,  however  essential,  is  not 
required.  Substantial  compliance  with  the  law  in  every  essen- 
tial feature  is  aU  that  is  necessary.  The  failure  to  comply 
strictly  with  the  provisions  of  the  statute,  which  is  not  manda- 
tory but  merely  directory,  will  not  vitiate  the  proceedings,  so  as 
to  render  the  subscription  invalid. 

Those  directions  which  are  not  of  the  essence  of  the  thing  to 
be  done,  which  are  given  with  a  view  merely  to  the  proper,, 
orderly,  and  prompt  conduct  of  the  business,  and  by  a  failure 
to  obey  which  the  rights  of  those  interested  will  not  be  preju- 
diced, are  not  commonly  to  be  recorded  as  mandatory ;  and  if 
the  act  is  performed,  but  not  in  the  time  or  in  the  precise  mode 
indicated,  it  may  still  be  sufficient,  if  that  which  is  done  accom- 
plishes the  substantial  purpose  of  the  statute. 

The  order  of  the  county  court  directing  the  sense  of  the  qual- 
ified voters  to  be  taken,  directs  the  election  to  be  held  by  the 
commissioners  of  election  in  conformity  to  law.  Though  the 
order  does  not  expressly  require  the  sheriff  to  act,  so  far  as  the 
agency  of  the  sheriff  was  rendered  necessary  by  law,  although 
not  named  in  the  order,  he  was  within  its  operation. 

It  was  not  necessary,  under  the  statute,  that  the  commis- 
sioners of  election  should  be  designated  by  name  in  the  order,, 
as  there  were  already  commissioners  legally  appointed.  They 
were  appointed  at  the  May  term  of  the  court,  and  though  the 
statute  directs  that  they  shall  be  appointed  at  the  April  term, 
this  provision  of  the  statute  is  clearly  directory.  For  other 
questions  in  relation  to  the  appointment  of  the  board  of  com- 
missioners to  examine  the  returns  and  the  time  when  the  com- 
missioners of  election  shall  make  their  returns,  see  the  opinion 
of  Burks,  J. 

The  commissioners  of  election  are  the  body  to  compute  and 
ascertain  the  number  of  registered  voters  in  the  county,  the 
number  of  votes  cast  at  the  election,  the  number  voting  for  and 
the  number  voting  against  subscription.  In  ascertaining  and 
reporting  the  number  of  registered  voters  in  the  county,  they 
are  to  be  guided  and  controlled  by  the  registration  books.  But 
where  the  registrar  had  noticed  on  the  book  the  death  or  re- 
moval of  a  person  registered,  it  was  proper  to  omit  his  name 
from  the  count. 

It  was  for  the  supervisors  to  fix  the  amount  of  the  sub- 
scription to  the  stock,  not  exceeding  the  sum  limited  by  the 
statute. 

The  supervisors  of  the  county  having  resolved  to  subscribe 


Citations  to  the  Code  of  Virginia.  107 

the  sum  of  one  hundred  thousand  dollars  on  condition  that  the 
town  of  D.  subscribed  fifty  thousand  dollars,  that  subscription 
cannot  subsequently  be  rescinded  by  them ;  and  a  resolution  by 
them  to  this  effect  was  invalid.  And  the  town  of  D.  having 
made  the  subscription  of  fifty  thousand  dollars,  the  supervisors 
may  carry  out  their  subscription  of  one  hundred  thousand  dol- 
lars, and  direct  the  issue  of  the  bonds  of  the  county  therefor  in 
the  mode  prescribed  by  the  statute.  It  was  not  necessary  that 
the  order  of  the  court  directing  the  vote  upon  the  subscription 
should  state  that  the  amount  to  be  subscribed  will  not  require 
an  annual  tax  in  excess  of  twenty  cents,  or  that  it  is  not  more 
than  one-fifth  the  capital  stock  of  the  company. 

There  being  no  evidence  in  the  record  that  the  subscription 
will  require  a  tax  in  excess  of  twenty  cents  on  the  one  hundred 
dollars  of  the  taxable  property  of  the  county,  and  no  such  ques- 
tion made  in  the  pleadings,  the  court  cannot  look  outside  of  the 
record  to  take  notice  of  the  auditor's  reports  and  the  assessor's 
books  to  ascertain  the  amount  of  taxable  property  in  the 
county. 

The  legislature  may  by  a  subsequent  act  legalize  the  pro- 
ceedings, if  they  were  irregular,  and  so  confirm  the  subscrip- 
tion. 

In  the  case  of  Taylor  et  als.  vs.  Board  of  Supervisors,  86  Va., 
506,  decided  November  7,  1889,  it  was  held :  In  its  order  made 
under  said  act,  and  directing  the  submission  of  the  question 
whether  or  not  the  county  should  subscribe  to  the  stock  of  a 
company  proposing  to  build  its  railroad  through  the  county, 
the  county  court  failed  to  state  the  maximum  of  subscription 
and  the  number  of  miles  the  road  was  to  be  built  through  the 
county.  Held :  Such  failure  does  not  invaUdate  the  order  nor 
the  proceedings  under  it. 

CHAPTER  LII. 

Section  1264. 

In  the  case  of  Richmond  cfe  Danville  liailroad  vs.  Medley, 
Va.  Eeports,  75,  499,  decided  April  28,  1881,  it  was  held :  A 
railroad  company  may  be  supplied  with  the  best  engines  and 
the  most  approved  apparatus  for  preventing  the  emission  of 
sparks,  and  ojjerated  by  the  most  skillful  engineers ;  it  may  do 
all  that  skill  and  science  can  suggest  in  the  management  of  its 
locomotives ;  and  still  it  may  be  guilty  of  gross  negligence  in 
allowing  the  accumulation  of  dangerously  combustible  matter 
along  its  track,  easily  to  be  ignited  by  its  furnaces,  and  thence 
communicated  to  the  property  of  adjacent  proprietors. 

In  the  case  of  Brighthope  Bailroad  Company  vs.  Rogers, 
79  Va.,  443,  railroad  company  is  liable  when  fire  is  attribu- 
table to  the  negligence  of  its  agents,  or  to  its  wants  of  proper 


108  -Citations  to  the  Code  of  Yirginia. 

machinery  and  spark  arresters,  or  to  the  accumulation  of  com- 
bustible matter  along  its  line. 

CHAPTEK    LIIL 

Section  1265. 
In  the  case  of  Cowardin  et  als.  vs.  Universal  Life  Ins.  Co.,  32 
Grat.,  445,  decided  December  18, 1879,  it  was  held,  p.  448 :  The 
foreign  character  of  a  corporation  is  not  to  be  determined  by 
the  place  where  its  business  is  transacted,  or  even  where  the  cor- 
porators reside,  but  by  the  place  where  its  charter  was  granted. 
With  reference  to  inhabitancy,  it  is  to  be  considered  as  an  in- 
habitant of  the  State  in  which  it  was  incorporated. 

Section  1266. 

In  the  case  of  Connecticut  Mutual  Life  Ins.  Co.  vs.  DnersonHs 
Executor,  28  Grat.,  630,  decided  July,  1877,  it  was  held :  An 
insurance  company  chartered  by  another  State,  but  doing  busi- 
ness in  this  State  in  compliance  with  the  statute  of  1855— '56,  is 
to  be  considered,  for  the  purpose  of  being  sued,  as  domiciled  in 
this  State,  and  is  entitled  to  rely  on  the  statute  of  limitations 
just  as  if  it  were  a  company  which  had  been  chartered  by  the 
legislature  of  this  State. 

Though  such  company  had  after  the  war  expressly  revoked 
the  powers  of  the  resident  agent  it  had  before  the  war,  and 
never  afterwards  appointed  another  in  his  place,  service  of 
process  on  such  agent  will  nevertheless  be  effectual  under  the 
statutes  in  that  behalf  to  give  jurisdiction  of  an  action  against 
such  company. 

The  provisions  of  said  statutes,  1855-'56,  were  amendatory 
of  the  previous  law,  and  extended  as  well  to  policies  previ- 
ously issued  as  to  policies  afterwards  issued;  and  a  foreign 
company  doing  business  in  the  State  under  the  same  at  the 
time  said  amendments  were  enacted,  and  continuing  to  do  busi- 
ness afterwards  in  compliance  with  all  said  statutes,  must  be 
taken  to  have  accepted  said  provisions  and  to  be  bound  by 
them. 

Section  1271. 

In  the  case  of  Universal  Life  Insurance  Co.  vs.  Coglnll,  30 
Grat.,  72,  decided  March  21,  1878,  it  was  held  :  A  foreign  in- 
surance company  has  deposited  bonds  with  the  treasurer  of  the 
State  in  pursuance  of  the  statute,  and  fails.  A  policy-holder 
may  sue  the  company  in  the  Circuit  Court  of  the  city  of  Eich- 
mond,  and  make  the  treasurer  a  party  defendant  to  subject  the 
bonds  in  his  possession  to  satisfy  the  premiums  he  has  paid 
upon  the  policy. 

In  the  case  of  Mutual  Benefit  Life  Insurance  Co.  vs.  Marye 


Citations  to  the  Code  of  Virginia.  109 

(Auditor),  85  Ya.,  643,  decided  January  17,  1889,  it  was  held : 
Only  such  assessment  companies  as  raise  money  to  pay  a  loss 
by  a  member's  death  by  assessment  made  upon  those  who  sur- 
vive him  are  entitled,  under  act  of  May  18,  1887,  to  be  licensed 
without  making  the  deposit  of  bonds  under  this  section. 

Section  1276. 

In  the  case  of  Universal  Life  Insurance  Co.  vs.  Binford  et 
als.,  76  Va.,  103. 

Insurance  Companies — Attachments. — A  New  York  insurance 
company  was  reported  by  the  State  insurance  superintendent  to 
the  attorney-general  as  not  in  the  condition  required  by  law. 
Thereupon  proceedings  were  started  to  dissolve  the  company 
and  appoint  a  receiver.  Soon  after  each  of  eight  Virginia 
policy-holders  sued  out  his  attachment  and  levied  it  on  the  pro- 
perty of  the  company  in  Richmond,  and  each  filed  his  bill, 
alleging  that  the  company  had  become  insolvent,  and  would  not 
be  able  to  fulfil  its  contract  when  his  policy  matured,  and 
praying  for  the  enforcement  of  his  lien.  Held  :  The  attach- 
ment did  not  ensue  to  the  benefit  of  all  the  policy-holders, 
whether  parties  to  the  suits  or  not.  This  case  is  unlike  that  of 
Firiney  vs.  Bennett  et  als.,  27  Grat.,  365,  where  the  bank  had 
ceased  business,  and  a  "creditors'  bill"  had  been  filed  to  settle 
its  affairs  and  distribute  its  assets. 

In  the  case  of  Bockover  vs.  Life  Association  of  America  et  als., 
11  Va.,  85,  decided  January  25,  1883,  B.  was  a  policy-holder  in 
a  company  chartered  in  the  State  of  Missouri.  In  1879  the 
company  was  regularly  adjudged  to  be  insolvent  by  a  court  of 
Missouri.  Under  a  decree  and  the  statute  of  Missouri,  passed 
that  year,  all  its  assets  were  vested  in  R.  for  the  benefit  of  its 
creditors.  In  1880,  in  the  Chancery  Court  of  Richmond,  B.  at- 
tached debts  due  the  company  by  citizens  of  Virginia.  The 
company  ansAvered,  admitting  the  claim  of  B.,  but  denying  that 
the  debts  were  liable  to  the  attachments,  and  R.  became  a 
party,  claiming  to  be  entitled  to  all  the  company's  assets,  in- 
cluding those  debts.     On  motion  to  abate  the  attachments,  held : 

1.  Statute  providing  mode  for  winding  up  insolvent  corpora- 
tions and  distributing  its  assets  equitably  among  those  thereto 
entitled  impairs  no  contract,  and  is  valid.  Such  is  the  Missouri 
statute  of  1879. 

2.  If  a  State  allows  a  foreign  corporation  to  do  business 
within  her  limits,  the  corporation  comes  as  it  is  created,  and 
brings  its  charter  as  the  law  of  its  existence. 

3.  Ever3'one  dealing  with  it  everywhere  must  notice  the  pro- 
visions of  its  charter  for  managing  and  controlling  its  affairs, 
both  in  life  and  after  dissolution. 

4.  Under  the  decree  and  statute,  the  company's  assets  were 


110  Citations  to  the  Code  of  Vieginia. 

validly  vested  in  R.  as  trustee  of  an  express  trust,  and  the  debts 
due  the  company  in  Virginia  could  not  be  attached  by  a  policy- 
holder in  Virginia. 

CHAPTEE  LIV. 

Section  1287. 

In  the  case  of  Western  Union  Telegraph  Co.  vs.  Williams,  86 
Va.,  696,  decided  March  27,  1890,  it  was  held :  Condemnation 
of  land  for  public  highway  gives  only  right  of  passage  over  it. 
The  absolute  property  in  the  land  remains  in  the  owner.  Erection 
of  telegraph  poles  and  wires  constitutes  an  additional  servitude 
on  the  land.  Act  of  February  10,  1880,  (this  section  authorizing 
construction  of  telegraph  lines  along  any  public  road,  if  the  use 
of  the  highway  be  not  obstructed,  without  providing  any  com- 
pensation to  the  land  owners,)  violates  the  constitutional  inten- 
tion when  taking  private  property  for  public  use  without  com- 
pensation. 

In  the  case  of  Postal  Telegraph  Cable  Co.  vs.  Norfolk  <& 
Western  Railroad  Company,  88  Va.,  920,  decided  March  24, 
1892,  it  was  held :  This  section  does  not  authorize  the  condem- 
nation of  a  right  of  way  along  and  upon  the  right  of  way  of  a 
railroad  company. 

Section  1290. 

In  the  case  of  Western  Union  Telegraph  Co.  vs.  Williams,  86 
Va.,  696,  decided  March  27,  1890,  it  was  held :  Condemnation 
of  land  for  public  highway  gives  only  right  of  passage  over  it. 
The  absolute  property  in  the  land  remains  in  the  owner.  Erection 
of  telegraph  wires  and  poles  constitutes  an  additional  servitude  on 
the  land.  Act  February  10, 1880,  (this  section  authorizing  con- 
struction of  telegraph  lines  along  any  public  road,  if  the  use  of 
the  highway  be  not  obstructed,  without  providing  any  compen- 
sation to  the  land  owners,)  violates  the  constitutional  intention 
when  taking  private  property  for  public  use  without  compensa- 
tion. 

Section  1291. 

In  the  case  of  Washington  <&  New  Orleans  Telegraph  Co.  vs. 
Holson  &  Son,  15  Grat.,  122,  decided  April,  1859,  it  was  held : 
In  an  action  against  a  telegraph  company,  the  line  of  which  ex- 
tends through  several  States,  though  it  appears  that  some  of  the 
defendants  live  out  of  the  State,  this  is  not  cause  for  arresting 
judgment  against  the  company;  if  it  is  good  ground  for  the  ob- 
jection to  the  jurisdiction  of  the  State  court,  it  must  be  taken  by 
plea  in  abatement  before  the  defendants  plead  in  bar. 

In  an  action  against  a  telegraph  company  for  damages  sus- 
tained by  the  plaintiflfs  by  the  alteration  of  a  message  sent  on 
their  hne,  whereby  an  order  to  the  plaintiff's  factor  in  Mobile  to 
buy  five  hundred  bales  of  cotton  was  altered  to  twenty-five  hun- 


Citations  to  the  Code  of  Virginia.  Ill 

dred,  but  not  charging  negligence  in  the  company,  an  instruc- 
tion that  the  defendants  are  not  responsible  as  common  carriers, 
but  only  as  general  agents,  for  such  gross  negligence  as  in  law 
amounts  to  fraud,  is  not  authorized  by  the  pleadings,  and  pro- 
perly refused. 

In  such  case,  the  factors  having  bought  two  thousand  and 
seventy-eight  bales  of  cotton  before  the  mistake  in  the  message 
was  ascertained,  if  the  company  is  liable  to  the  plaintifis  for  the 
damages  arising  from  the  alteration  of  the  message,  the  com- 
missions of  the  factors  upon  the  purchase  of  the  cotton  are  a 
part  of  the  damages  for  which  the  company  is  liable,  and  the 
plaintiffs  are  not  bound  to  accept  any  offer  of  the  company  to 
pay  the  damages  Avhich  excludes  these  commissions. 

In  such  case,  if  the  company  is  liable  to  the  plaintiffs  for  dam- 
ages from  the  alteration  of  a  message,  the  measure  of  these 
damages  is  what  is  lost  on  the  sale  of  the  cotton  at  Mobile  in 
the  condition  and  circumstances  in  which  it  was  when  the  mis- 
take was  ascertained ;  including  in  such  loss  all  the  proper  costs 
and  charges  thereon. 

When  the  mistake  was  ascertained,  a  part  of  the  cotton  was 
on  board  of  a  ship  to  be  sent  to  Liverpool ;  a  part  was  under 
a  contract  of  affreightment  to  the  same  place,  but  not  on  board. 
The  whole  should  have  been  sold  as  it  was  at  Mobile,  and  the 
plaintiffs  having  sent  it  to  Liverpool  and  sold  it  there,  the  loss 
to  the  company  is  not  to  be  increased  by  this  act  of  the  plain- 
tiffs, but  must  be  based  upon  an  estimate  of  what  it  would  have 
sold  for,  a  part  on  shipboard  and  a  part  under  a  contract  of 
affreightment.  If  the  plaintiffs  sent  the  cotton  to  Liverpool 
for  the  purpose  of  speculating,  with  the  intention  of  taking  to 
themselves  the  profits,  if  any,  and  in  the  event  of  a  loss  on  the 
company,  they  are  not  entitled  to  recover  any  loss  sustained 
upon  it. 

But  if  the  plaintiffs  sent  the  cotton  to  Liverpool  not  with  a 
purpose  of  taking  the  profits,  if  any,  but  only  to  indemnify  them- 
selves out  of  the  proceeds  to  the  extent  of  the  cost  and  the 
obligations  incurred  by 'them,  they  do  not  thereby  lose  their 
right  to  recover  from  the  company  the  damages  which  they 
would  have  sustained  if  the  cotton  had  been  sold  at  Mobile. 
The  plaintiffs,  if  they  intended  to  hold  the  company  responsible 
for  the  excess  of  cotton  purchased,  should,  as  soon  as  they  were 
apprised  of  the  purchase,  have  notified  the  company  of  such  in- 
tention ;  should  have  made  a  tender  of  such  excess  to  the  com- 
pany on  the  condition  of  its  paying  the  price  and  all  the  charges 
incident  to  the  purchase,  and  also,  in  case  of  its  refusal  to  accept 
said  tender  and  comply  with  its  conditions,  they  would  proceed 
to  sell  such  excess  at  Mobile,  and,  after  crediting  said  company 
with  the  profits,  would  look  to  it  for  the  difference  between  the. 


112  Citations  to  the  Code  of  "Virginia. 

amouut  of  sucli  proceeds  and  the  cost  of  the  excess,  including 
all  proper  charges ;  and  upon  the  failure  of  the  company  after 
notice  to  accede  to  their  offer,  they  should  have  proceeded 
accordingly. 

The  case  of  Westerji  Union  Telegraph  Co.  vs.  Reynolds  Bros.^ 
77  Va.,  173,  does  not  construe  the  Code,  but  is  ruled  by  it. 

Section  1292. 

In  the  case  of  ^Yestern  Union  Telegraph  Co.  vs.  Pettyjohn,  88 
Va.,  296,  decided  July  19, 1891,  it  was  held:  The  penalty  of  one 
hundred  dollars  imposed  by  this  section  upon  a  telegraph  com- 
pany for  failure  to  deliver  a  dispatch,  being  a  line,  a  justice  of 
the  peace  has  not  jurisdiction  of  a  claim  to  recover  the  same,  as 
it  exceeds  twenty  dollars.     See  Section  2939. 

In  the  case  of  ^Ye8tern  Union  Telegraph  Co.  vs.  Tyler,  18 
Southeastern  Reporter,  280,  decided  November  16,  1893.  This 
section  provides  that  every  telegraph  company  shall  deliver 
a  telegram  promptly  to  the  person  to  whom  it  is  addressed, 
and  that  for  every  failure  to  forward  or  deliver  a  dispatch  as 
promptly  as  practicable  the  company  shall  forfeit  $100  to  the 
person  sending  the  dispatch  or  to  the  person  to  whom  it  was 
addressed.  Held  :  That  a  suit  to  enforce  such  forfeitiire  need 
not  be  brought  in  the  name  of  the  Commonwealth.  Said  statute 
is  not  repugnant  to  the  interstate  commerce  clause  of  the  Con- 
stitution of  the  United  States. 

CHAPTER  LV. 

Section  1295. 

In  the  case  of  Southern  Express  Co.  vs.  McVeigh,  20  Grat., 
264,  decided  January,  1871,  it  was  held  :  An  action  on  the  case 
hes  against  the  party  who  has  a  public  employment — as  a  com- 
mon carrier  or  other  bailee — for  a  breach  of  duty  which  the 
law  implies  from  his  employment  or  general  relation. 

Where  there  is  a  public  employment,  from  which  arises  a 
common  law  duty,  an  action  may  be  brought  in  tort,  although 
the  breach  of  duty  assigned  is  the  doing  or  not  doing  something 
contrary  to  an  agreement  made  in  the  course  of  such  employ- 
ment by  the  party  on  whom  such  general  duty  is  imposed. 

Though  the  declaration  does  not  allege  that  the  defendants 
are  common  carriers,  yet  if  the  facts  set  out  constitute  them 
such  in  law,  it  is  sufficient  to  sustain  the  action  against  them  as 
common  carriers.  An  express  company  is  to  be  regarded  as  a 
common  carrier,  and  its  responsibihties'for  the  safe  delivery  of 
the  property  entrusted  to  it  is  the  same  as  that  of  the  carrier. 

Though  the  declaration  in  a  case  does  not  allege  the  duty  of 
the  defendants,  as  common  carriers,  to  carry  the  goods,  and  the 


Citations  to  the  Code  of  Virginia.  113 

breach  of  that  duty,  if  it  avers  facts  from  which  the  law  infers 
the  duty,  and  that  the  defendants,  not  regarding  their  said  duty, 
etc.,  and  assigns  the  breach,  that  is  sufficient.  To  subject  a 
party  to  the  responsibility  of  a  carrier  for  goods  lost,  it  must  ap- 
pear that  he  received  the  goods,  and  that  they  were  delivered  to 
and  received  by  him  as  a  carrier. 

v.,  owner  of  certain  goods  about  to  arrive  at  the  depot  of  the 
railroad  in  Charlotte,  N.  C,  wishes  them  to  be  carried  from 
thence  to  Richmond,  Ya.,  and  an  express  company,  by  their 
agent  at  Charlotte,  undertakes  to  remove  and  deposit  said  goods 
in  their  warehouse  as  soon  as  possible  on  the  arrival  of  the 
goods  at  the  depot  at  Charlotte,  and  to  carry  them  from  Char- 
lotte to  Richmond  within  a  reasonable  time  for  a  reward  paid. 
The  goods  arrive  at  the  depot,  and  the  express  company  has 
notice  of  their  arrival.  This  is  a  delivery  to  the  express  com- 
pany as  carriers.  When  goods  are  delivered  to  parties  to  be 
carried  and  transported,  and  these  parties  are  expressmen,  and 
receive  compensation  for  forwarding  and  transporting,  the  goods 
are  in  their  custody  as  earners.  If  the  goods  are  under  the 
control  of  parties  as  forwarders,  and  not  as  common  carriers, 
and  are  .consumed  by  accidental  fire  in  a  warehouse,  without 
any  fault  or  negligence  on  their  part,  they  are  not  liable,  unless 
they  had  expressly  agreed,  for  compensation  paid,  to  insure 
them,  and  had  failed  to  do  so. 

In  the  case  of  Wilson  vs.  C.  (&  0.  B.  li.  Co.,  21  Grat., 
654,  decided  January,  1872,  it  was  held:  The  Chesapeake 
&  Ohio  Railway  Company  is  the  Virginia  Central  Railroad 
Company  under  another  name,  and  is  liable  under  any  contract 
or  for  the  negligence  of  the  Virginia  Central  Railroad  Company. 
A  railroad  company  is  liable  as  a  common  carrier  for  the 
baggage  of  a  passenger  to  the  same  extent,  if  the  passenger 
is  travelling  with  his  baggage,  as  if  it  were  carried  without 
him. 

Under  the  contract  between  the  Virginia  Central  Railroad 
Company  and  Trotter  &,  Bro.,  stage  proprietors,  for  the  car- 
riage by  the  latter  of  passengers  from  the  terminus  of  the 
railroad  to  the  White  Sulphur  Springs,  Trotter  &  Bro.  are 
the  agents  for  the  railroad  company,  and  the  company  is  liable 

I  for  the  loss  of  the  baggage  of  a  passenger  by  Trotter  &  Bro. 
Though  the  contract  stipulates  that  each  party  shall  be  re- 
sponsible for  losses  occurring  on  their  part  of  the  line,  the  rail- 
road company  is  responsible  for  the  loss  of  a  passenger's  bag- 
gage by  tlie  stage  line. 
Through  passengers  from  Richmond  to  the  White  Sulphur 
Springs  are  allowed  to  stay  all  night  at  the  terminus  of  the  road 
and  go  on  in  the  stages  the  next  morning.  Though  a  passenger 
takes  her  baggage  with  her  to  tke  hotel  where  she  stays,  yet 


114  Citations  to  the  Code  of  Virginia. 

if  she  the  next  morning  brings  it  with  her  to  the  stage,  and 
commits  it  to  the  agent  of  the  line,  and  it  is  lost,  the  railroad 
company  is  responsible  for  the  loss. 

Though  the  through  ticket  given  to  the  passenger  at  Eichmond 
specifies  on  its  face  that  each  party  to  the  contract  is  only  lia- 
ble for  losses  on  their  part  of  the  line,  the  railroad  company  is 
liable  for  the  losses  on  the  stage  line. 

To  restrict  the  liability  of  a  railroad  company  as  a  common 
carrier  for  the  loss  of  the  baggage  of  a  passenger,  there  must  be 
proof  of  actual  notice  to  the  passenger  of  each  restriction  be- 
fore the  cars  are  started;  and  an  endorsement  on  the  ticket 
given  to  the  passenger  is  not  enough,  unless  it  is  shown  that  he 
knew  its  purport  before  the  cars  started. 

In  the  case  of  Virginia  ds  Tennessee  Railroad  Company  vs. 
Sayers,  26  Grat.,  328,  decided  July  7,  1875,  it  was  held:  It 
seems  a  railroad  company  may,  by  express  contract,  or  notice 
brought  home  to  the  employers,  relieve  itself  from  its  liability  as 
insurer  of  freight,  or  for  money  or  valuable  articles  liable  to  be 
stolen  or  damaged,  unless  apprised  of  their  character  and  value, 
or  for  articles  liable  to  rapid  decay,  or  for  live  animals  liable  to 
get  unruly  from  fright  and  to  injure  themselves  in  that  state,  when 
such  articles  or  animals  become  injured  without  the  fault  or  neg- 
ligence of  the  company  or  its  agents.  But  a  railroad  company 
cannot  by  express  contract,  though,  upon  the  consideration  of  a 
reduced  charge  upon  the  freight,  relieve  itself  from  its  liability 
as  carrier  of  the  freight  for  injury  to  or  the  loss  of  freight,  re- 
sulting in  any  degree  from  the  want  of  care  or  faithfulness  of 
themselves  or  their  agents. 

Section  1296. 

In  the  case  of  Richmond  <&  Danville  Railroad  Co7npany  vs. 
Payne,  86  Va.,  481,  decided  January  30,  1890,  it  was  held :  By 
Code  1887,  this  section,  no  agreement  to  exempt  a  common  car- 
rier from  liability  for  injury  or  loss  occasioned  by  his  own  neg- 
lect or  misconduct  shall  be  valid ;  yet  the  weight  of  authority 
favors  the  proposition  that  a  carrier  may,  by  special  agreement 
fairly  made,  in  consideration  of  a  reduced  rate  of  transportation, 
limit  his  liability  to  a  certain  amount  less  than  the  value  of  the 
property,  in  case  of  loss  or  damage  occurring  through  his  neg- 
ligence. 

In  the  case  of  Johnson's  Adm'x  vs.  Richmond  dc  Danville 
Railroad  Company,  86  Va.,  975,  decided  June  19,  1890,  it  was 
held :  A'  contract  whereby  a  party  stipulates  for  his  exemption 
from  liability  for  the  consequences  of  his  own  negligence  is 
against  pubUc  poHcy  and  void.  This  is  so  independently  of 
this  section. 

CHAPTEE  LVI. 


Citations  to  the  Code  of  Virginia.  115 

TITLE  XIX. 
CHAPTEE  LYII. 

Section  1315. 

In  the  case  of  Kelly  vs.  Board  of  Public  Works,  25  Grat., 
755,  decided  January  21,  1875,  it  was  held :  An  action  may  be 
maintained  against  the  present  board  of  public  works  upon  a 
contract  made  with  the  board  as  organized  under  the  former 
constitution  and  laws. 

In  the  case  of  The  Coinmonwealtfi  vs.  Johnson  et  als.,  33  Grat., 
294,  decided  July,  1880,  it  was  held :  The  contract  made  on  the 
27th  of  February,  1867,  by  the  board  of  public  works  with  B. 
T.  Johnson,  N.  Poe,  and  J.  P.  Poe,  for  prosecuting  the  claims 
of  the  State  of  Virginia  against  the  Chesapeake  &  Ohio  Canal 
Company,  was  authorized  by  the  resolution  of  the  General 
Assembly  of  February  26,  1867,  and  a  full  and  final  and  honest 
settlement  of  all  the  matters  involved  in  the  contract  having 
been  made  by  the  board  and  Johnson,  &c.,  the  same  is  conclu- 
sive upon  the  State. 

In  the  case  of  Kelly  vs.  Board  of  Pahlic  Works,  Va.  Reports, 
75,  263,  decided  February  10,  1881 :  K.  was  the  agent  of  the 
public  works  of  Virginia  in  constructing  the  railroad  and  Blue 
Ridge  tunnel ;  the  board  to  pay  for  the  work  and  materials,  and 
K.  to  receive  a  commission  on  the  cost  for  his  compensation. 
The  board  provided  the  money  to  pay  for  the  work  by  a  sale  of 
State  bonds;  and  these  bonds  having  fallen  below  par,  there 
was  a  deficiency  of  funds  to  pay  the  expenses,  and  K.  advanced 
his  own  funds  to  meet  these  expenses,  he  claiming  that  the 
board  of  public  works  had  agreed  to  repay  the  advances  that 
he  might  make.     In  an  action  by  K.  against  the  said  board,  held : 

1.  If  there  was  an  express  or  implied  contract  between  K. 
and  the  said  board  that  K.  should  be  paid  for  his  advance- 
ments to  carry  on  the  work,  he  is  entitled  to  recover  in  this 
action. 

2.  That  such  contract  may  exist  and  be  binding  on  the  board, 
although  there  is  no  entry  of  it  on  the  records  of  the  board,  and 
may  be  proved,  as  well  as  in  other  modes,  by  parol  evidence, 
that  at  a  regular  session  of  the  board,  a  majority  of  the  mem- 
bers being  present,  the  plaintiff  was  told  by  a  member  of  the 
board  in  the  presence  of  the  board  then  in  session,  that  it  was 
the  wish  of  the  board  that  he  should  advance  the  money  neces- 
sary to  make  up  the  deficiency  occasioned  by  the  sale  of  the 
State  bonds  at  less  than  par  for  the  prosecution  of  the  work, 
and  that  the  same  should  be  refunded  to  him,  which  was  then 
and  there  agreed  to  by  the  said  K. 


116  Citations  to  the  Code  of  Virginia. 

If  these  advances  were  made  by  K.  with  the  knowledge  of 
the  board,  without  objections  on  their  part,  and  were  applied  so 
as  to  continue  the  work,  which  the  board  regarded  as  important 
to  preserve  valuable  property  of  the  State  from  loss,  and  the 
successful  prosecution  of  the  work,  a  contract  on  the  part  of 
the  board  to  refund  the  money  to  K.  for  the  advances  so  made 
by  him  may  thereby  be  implied,  unless  it  be  shown  that  K. 
agreed  to  receive  the  State  bonds  at  their  par  value  in  payment 
of  the  cost  of  the  work  pro  tanto. 

The  right  of  the  plaintiff  to  recover  in  this  action  is  not 
affected  by  the  question  whether  the  sale  of  said  bonds  under 
the  direction  of  the  board  of  public  works  was  with  or  without 
the  authority  of  law,  or  in  violation  of  law  or  not. 

CHAPTEE  LVIII. 
CHAPTEE  LIX. 


TITLE  XX. 
CHAPTEE  LX. 

Section  1338. 

In  the  case  of  Norfolk  City  vs.  Cooke,  27  Grat.,  430,  decided 
April  13,  1876,  it  was  held:  A  patent  for  land  constituting  a 
part  of  the  bed  of  a  navigable  river  conveys  no  title  to  it. 

In  the  case  of  McCandlish  vs.  The  Commonwealth,  76  Va., 
1002. 

Jurisdiction — Construction  of  Statutes — Cargoes — Case  at 
Bar. — On  board  of  vessels  seized  whilst  employed  in  violating 
the  act  of  March  6,  1880  (Acts  1879-80,  p.  197),  were  cargoes 
of  oysters.  These  the  justices  examining  the  captains,  who 
were  prisoners,  ordered  the  sheriff  to  sell,  and  hold  the  net  pro- 
ceeds until  the  decision  of  the  cases.  The  prisoners,  in  writing, 
directed  the  sheriff  to  pay  the  proceeds  to  their  attorney,  M.,^ 
for  his  services.  After  the  prisoners  had  been  convicted  in  the 
county  court  M.  petitioned  that  court  to  order  the  sheriff  to  pay 
him  the  proceeds.  The  Commonwealth  resisted,  but  the  county 
court  entered  the  order,  which,  on  error,  the  circuit  court  re- 
versed, and  adjudged  the  Commonwealth  entitled  to  receive  the 
money.     On  error  to  this  court,  held  : 

1.  The  State  can  only  be  sued  in  the  tribunals  designated  by  her^ 
and  she  has  not  designated  the  county  courts ;  but  the  State  insti- 
tuted these  proceedings  in  the  county  courts,  and  the  demand 
made  by  M.'s  petition  is  in  the  nature  of  a  counter  claim,  and 
is  not  a  direct,  original  suit  against  the  State. 

2.  As  that  act  does  not  attempt  to  forfeit  the  cargoes  of  ves- 


Citations  to  the  Code  of  Vikginia.  117 

sels  employed  in  violating  its  provisions,  the  Commonwealth  ac- 
quired no  title  to  the  oysters  by  forfeiture. 

3.  As  the  oyster  beds  belonging  to  the  Commonwealth  are 
common  to  all  her  citizens,  subject  to  certain  restrictions  as  to 
the  mode  of  taking  them,  and  as  it  does  not  appear  affirmatively 
that  the  oysters  were  tortuously  taken,  the  Commonwealth  ac- 
quired no  right  of  detention  or  recaption.  Mere  seizure  gave 
no  right  of  property. 

4.  As  the  Commonwealth  had  no  title  to  the  oysters,  she 
could  not,  of  course,  be  entitled  to  receive  the  proceeds. 

As  to  the  Title  to  the  Bed  of  a  Water-course. — In  the  case  of 
Home  vs.  Richards,  4th  Call,  441,  decided  April,  1798,  it  was 
held :  The  bed  of  a  navigable  river  is  in  the  Commonwealth, 
and  cannot  be  granted.  In  a  river  not  navigable  the  owner  of 
the  soil  on  one  side  is  proprietor  of  the  bed  to  the  middle  of  the 
stream. 

In  the  case  of  Hayes's  Executor  et  als.  vs.  Bowman,  1  Rand., 
417,  decided  April,  1823,  it  was  held  :  Where  land  is  conveyed 
which  is  bounded  by  a  water-course  not  navigable,  such  con- 
veyance carries  with  it  the  title  to  a  moiety  of  the  bed  of  the 
water-course. 

In  the  case  of  Mead  et  als.  vs.  Haynes,  3  Rand.,  33,  decided 
November,  1824,  it  was  held :  A  person  owning  lands  on  one 
side  of  a  stream  not  navigable  is  entitled  to  a  moiety  of  the  bed 
of  the  stream. 

In  the  case  of  Crenshaw  vs.  Slate  River  Company,  6  Rand., 
245,  decided  March,  1828,  it  was  held :  Although  grants  of  lands 
to  individuals  may  include  the  bed  and  banks  of  streams  or 
rivers,  yet  the  public  have  a  right  to  the  use  of  all  such  streams 
or  rivers  for  the  purposes  of  navigation ;  but  the  legislature 
(representing  the  sovereign  power)  may  confer  on  individuals, 
by  general  law  or  particular  grants,  rights  in  opposition  to  and 
paramount  to  this  public  right,  and  such  paramount  rights  have 
been  conferred  on  owners  of  mills  by  the  general  law  author- 
izing the  courts  to  establish  mills. 

In  the  case  of  Commonwealth  vs.  Garner,  3  Grat.,  655,  de- 
cided December,  1846,  by  the  General  Court:  A  sovereign 
State  owning  the  country  on  both  sides  of  a  large  navigable 
river  grants  the  country  northwest  of  the  river  to  another  sov- 
ereign State.  Qucere :  Is  the  bank  bounded  on  the  river  by  the 
top  of  the  bank,  or  the  edge  of  the  water,  or  low  water  mark? 

CHAPTER  LXL 

Section  1347. 
In  the  case  of  Richards  vs.  Iloome,  2  Washington,  46  (1st 
edition,  p.  36),  decided  at  October  term,   1794,  it  was  held: 
Upon  an  appeal  from  an  order  giving  leave  to  build  a  mill  the 


118  Citations  to  the  Code  of  Virginia. 

record  should  state  that  it  appeared  to  the  court  granting  the 
order  that  the  bed  of  the  water-course  was  in  the  applicant  or 
in  the  Commonwealth. 

This  decision  was  approved  in  the  case  of  Wroe  vs.  Harris,  2 
Washington,  126,  decided  at  October  term,  1795,  when  it  was 
held :  Where  the  person  applying  for  leave  to  build  a  mill  has 
land  on  one  side  of  the  stream  only,  it  should  be  stated  in  the 
petition  that  the  bed  of  the  stream  is  in  himself  or  the  Common- 
wealth, but  this  is  unnecessary  if  he  own  the  land  on  both 
sides. 

In  the  case  of  Hoome  vs.  Richards,  4  Call,  441,  decided  April, 
1798,  it  was  held :  It  is  immaterial  whether  the  bed  of  the  river 
is  in  the  Commonwealth  or  the  petitioner.  He  must  own  the 
lands  on  which  he  proposes  to  build  the  mill,  machine,  manu- 
factory or  engine. 

In  the  case  of  Martin  vs.  Beverly,  5  Call,  444,  decided  April, 
1805,  it  was  held :  It  is  necessary  to  state  in  a  petition  for  a 
mill  on  a  navigable  river  that  the  bed  is  in  the  Commonwealth. 

In  the  case  of  Wilkiiison  vs.  Mayo,  3  H.  &  M.,  565,  decided 
April  25,  1809,  it  was  held :  The  county  or  corporation  courts, 
at  quarterly  terms,  may,  in  their  discretion,  receive  the  probate 
of  wills  or  deeds,  or  decide  on  troversies  concerning  mills,  or, 
indeed,  transact  any  business  embraced  by  the  general  juris- 
diction of  such  courts;  but  at  the  monthly  session  they  cannot 
take  jurisdiction  of  any  expressly  and  exclusively  assigned  to  a 
quarterly  term. 

If  the  applicant  for  leave  to  build  a  mill  state  that  he  is  the 
owner  of  the  land  on  both  sides  of  the  water-course,  when,  in 
truth,  he  is  not,  the  writ  of  ad  quod  damnum  and  inquisition 
taken  upon  it  ought  to  be  quashed. 

In  the  case  of  Rowlett's  Executor  vs.  Moody,  4  H.  &  M.,  2, 
decided  May  3,  1809,  the  mentioning  in  the  writ  of  ad  quod 
damnum  a  certain  height  for  the  mill-dam  is  no  ground  for 
setting  aside  the  proceedings  at  the  instance  of  the  opposing 
party,  notwithstanding  no  particular  height  was  specified  in  the 
order  directing  the  writ. 

It  is  sufficient  for  the  clerk  to  state  in  the  record  that  the  writ 
of  ad  qxiod  damnum,  with  the  inquisition  annexed,  was  returned 
by  the  sheriff  without  inserting  a  copy  of  the  signature  of  the 
sheriff  or  of  his  deputy  to  the  return,  a  copy  of  the  inquisition 
itself  with  the  signatures  of  the  jury  being  inserted. 

In  the  case  of  Mead  vs.  Ilaynes,  3  Rand.,  33,  decided  Novem- 
ber, 1824,  it  was  held :  A  person  owning  lands  on  one  side  of  a 
stream  not  navigable  is  entitled  to  a  moiety  of  the  bed  of  the 
stream. 

:  A  petition  for  leave  to  build  a  mill  where  the  bed  of  the 
stream  belongs  in  part  to  the  petitioner  will  be  sufficient  upon 


Citations  to  the  Code  of  Virginia.  119 

showing  that  fact,  although  the  petition  itself  does  not  state  it, 
but,  on  the  contrary,  states  that  the  bed  of  the  stream  belongs  to 
the  Commonwealth. 

A  petition  for  leave  to  build  a  mill  may  be  ore  tenus. 

In  the  case  of  P'ltzer  vs.  Williams,  2  Rob.,  241,  decided 
August,  1843,  a  person  owning  real  estate  died  intestate,  leaving 
a  widow  and  children,  and  dower  not  being  assigned  to  the 
widow,  she  continued  in  the  mansion-house  and  the  plantation 
thereto  belonging.  Under  the  statute  notice  was  given  the 
widow,  as  proprietor  of  the  land,  by  a  person  desiring  to  build  a 
machine  useful  to  the  public,  and  to  abut  his  dam  against  said 
land,  that  apphcation  would  be  made  for  a  writ  of  ad  quod  dam- 
num, and  the  writ  was  accordingly  awarded,  and  an  inquisition 
returned.  After  which,  one  of  the  heirs,  who  resided  on  the 
plantation  with  his  mother,  being  made  a  defendant,  on  his  mo- 
tion moved  the  court  to  dismiss  the  case  upon  the  ground  that 
notice  of  the  application  ought  to  have  been  given  to  him  as  one 
of  the  proprietors;  but  his  motion  was  overruled.  He  then 
offered  to  introduce  evidence  to  prove  that  the  applicant  did 
not  own  the  land  on  which  he  proposed  to  erect  his  machine, 
but  it  being  proved  that  the  applicant  was  in  possession  of  the 
land,  claiming  title  to  it,  and  had  built  a  house  thereon,  the 
court  refused  to  permit  the  evidence  offered  to  be  introduced. 
Held :  There  is  no  error  in  these  proceedings ;  for  it  was  sufl&- 
cient  that  the  person  making  the  application  was  in  the  actual 
possession  and  occupation  of  the  land  on  which  the  machine 
was  to  be  built,  and  that  the  person  to  whom  notice  was  given 
was  the  tenant  in  possession,  and  appeared  as  the  visible 
owner. 

In  the  case  of  Wkitworih  et  ux  vs.  Packett,  2  Grat.,  528,  de- 
cided January,  1846,  it  was  held :  On  an  application  for  leave 
to  erect  a  mill,  or  other  machine,  the  petitioner  must  show  he 
has  proceeded  in  the  mode  prescribed  by  law  to  suit  his  partic- 
ular case. 

If  it  appears  upon  the  hearing  of  the  case  before  the  court 
that  a  greater  quantity  of  the  land  of  the  adjoining  proprietors 
will  be  overflowed  than  the  jury  estimated,  the  inquisition 
should  be  quashed,  and  a  new  writ  directed  to  issue. 

The  court  has  no  authority  to  increase  or  diminish  the  dam- 
ages to  the  adjoining  proprietors  assessed  by  the  jury. 

The  applicant  for  leave  to  build  a  mill,  or  other  machine,  is 
not  entitled  to  the  ownership  of  the  land  overflowed  by  the  erec- 
tion of  the  dam,  upon  paying  the  damages  assessed  by  the 
kjury. 
In  the  case  of  Mairs  vs.  Gallahue,  9  Grat.,  94,  decided  July 
26,  1852,  it  was  held  :  In  a  petition  for  leave  to  erect  a  dam,  the 
petition,  which  was  ore  tennn,  states  that  the  applicant  is  the 


120  Citations  to  the  Code  of  Virginia. 

owner  of  the  banks  on  both  sides  of  the  stream.  This  is,  in 
effect,  the  statement  that  he  is  the  owner  of  the  land,  and  espe- 
cially if  it  appears  from  the  other  parts  of  the  proceedings  that 
he  is  the  owner  of  the  land  on  both  sides  of  the  stream.  The 
petition  states  that  the  applicant  desired  a  writ  of  ad  quod  dam- 
num to  issue  for  the  purpose  of  erecting  a  water  grist-mill,  etc. 
This  is  a  sufficient  compliance  with  the  statute. 

When,  upon  a  fair  and  reasonable  construction  of  the  inqui- 
sition, it  is  substantially  responsive  to  the  requirements  of  the 
statute,  that  is  sufficient.  When  the  petition  or  the  order  of  the 
court  directing  the  writ  of  ad  quod  damnum  to  issue  does  not 
specify  the  height  of  the  dam  proposed  to  be  erected,  it  is  pro- 
per and  .correct  for  the  jury  to  specify  it  in  their  inquisition. 
There  is  an  exception  for  the  refusal  of  the  county  court  to 
continue  the  cause  on  account  of  the  absence  of  a  material  wit- 
ness ;  but  on  appeal  to  the  circuit  court  by  the  exceptant,  the 
case  is  again  heard  upon  the  record  of  the  county  court  and 
upon  the  testimony  of  witnesses  then  examined  before  the  court, 
one  of  whom  is  the  witness  referred  to  in  the  exception,  and  the 
judgment  of  the  county  court  is  affirmed.  The  want  of  the  wit- 
ness's testimony  before  the  county  court  cannot  be  the  subject  of 
complaint  in  the  court  of  appeals. 

An  exception  is  taken  to  the  judgment  of  the  county  court 
authorizing  the  erection  of  the  dam,  on  the  ground  that  it  would 
be  injurious  to  the  health  of  the  neighborhood ;  and  the  evi- 
dence is  stated  in  the  exception.  The  circuit  court  passes  on 
that  question  upon  full  evidence,  and  to  its  opinions  there  is  no 
exception ;  and  as  both  the  county  and  circuit  courts  were  sat- 
isfied upon  that  point,  the  court  of  appeals  will  presume  that 
the  proofs  showed  that  the  health  of  the  neighborhood  would 
not  be  affected  by  the  erection  of  the  dam.  The  judgment  of 
the  court  giving  leave  to  erect  the  dam  provides  that  the  appel- 
lant shall  keep  a  ferry-boat  at  the  crossing  of  a  public  road  over 
the  stream  across  which  the  dam  is  to  be  erected.  Held  :  This 
is  authorized  by  the  statute;  and  as  the  county  and  circuit 
courts  have  held  upon  the  proofs  that  a  ferry-boat  at  that  place 
will  sufficiently  remedy  any  impediment  to  the  crossing  of  the 
stream,  the  court  of  appeals  will  presume  that  they  acted 
rigb%>  nothing  being  shown  to  the  contrary. 

The  duty  of  keeping  up  the  ferry-boat  is  not  merely  personal 
to  the  grantee  of  the  privilege  of  erecting  the  dam,  but  it  is  a 
condition  of  the  grant,  and  attaches  to  it  into  whose  hands 
soever  it  may  pass.  The  kind  of  boat  to  be  kept  must  be  such 
an  one  as  the  exigencies  of  the  travel  and  trade  on  the  road 
shall  require.  It  is  the  duty  of  the  party  required  to  keep 
up  the  ferry-boat  to  ferry  the  public  over  the  stream  without 
charge. 


Citations  to  the  Code  of  Yieginia.  121 

Section  1348. 
In  the  case  of  Roivletfs  Executor  vs.  Moody,  4  H.  &  M.,  2, 
decided  May  3,  1809,  it  was  held :  An  inquisition  on  a  writ  of 
-ad  quod  damnum  in  a  mill  case  having  found  that  the  lands  of 
T.  R.,  deceased,  would  be  overflowed,  and  a  summons  having 
issued  to  T.  C,  acting  executor  and  trustee  of  the  decedent,  to 
show  cause  why  leave  should  not  be  granted  to  erect  the  mill, 
and  T.  C.  having  appeared  and  contested  the  motion,  he  was 
precluded  from  afterwards  saying  that  he  was  not  legally  sum- 
moned as  the  tenant  or  proprietor  of  the  land. 

Section  1349. 

In  the  case  of  Ifoel  vs.  Sale,  1  Call,  495,  2d  edition,  431,  de- 
cided April  27,  1799,  it  was  held:  If  an  inquisition  be  im- 
properly quashed,  the  plaiutifi'  should  pray  a  new  writ  or  except 
to  the  court's  opinion. 

The  deputy  sheriff  may  take  an  inquisition. 

In  the  case  of  Coleman  {Executor  and  Trtistee  of  Rowlett)  vs. 
Moody,  4  H.  &  M.,  1,  decided  May,  1809,  it  was  held:  The  men- 
tioning in  the  writ  of  ad  quod  damnu7n  a  certain  height  for  a 
mill-dam,  is  no  ground  for  setting  aside  the  proceedings  at  the 
instance  of  the  opposing  party;  notwithstanding  no  particular 
height  was  specified  in  the  order  directing  the  writ. 

Section  1350. 

In  the  case  of  ^Yroe  vs.  Harris,  2  Washington,  162,  1st 
edition,  p.  126,  decided  October  term,  1795,  it  was  held :  It  is 
not  necessary  that  the  inquisition  should  set  forth  the  injury 
which  the  land  below  the  dam  may  sustain. 

In  the  case  of  Eppes  vs.  Cralle,  1  Munf.,  258,  decided  May  1, 
1810,  it  was  held :  On  a  petition  for  leave  to  add  to  the  height 
of  a  mill-dam,  the  only  proper  subject  of  inquiry  is,  what  dam- 
ages will  be  occasioned  by  the  proposed  addition.  It  is  error, 
therefore,  to  direct  the  jury  to  assess  such  other  damages  ac- 
cruing from  the  dam  already  erected  as  were  not  contemplated 
by  the  original  jury.  But  an  error  in  this  respect  should  be 
regarded  as  surplusage  (the  petition  for  the  writ  of  ad  quod 
damnum  having  prayed  only  for  such  inquiry  as  the  law  au- 
thorizes) if  the  jury  assessed  such  erroneous  damages  sepa- 
rately, and  the  court  did  not  direct  the  same  to  be  paid,  but 
only  the  damages  properly  assessed. 

In  the  case  of  Dawson  vs.  Moons,  4  Munf.,  535,  decided 
March  24,  1815,  it  was  held :  A  date  to  the  inquisition,  upon  a 
writ  of  ad  quod  damnum,  is  not  essential,  if  it  be  stated,  under 
the  hands  and  seals  of  the  jurors,  that,  "in  obedience  to  the 
annexed  writ,  they  viewed  the  lands  in  question,"  etc.  If  the 
jury  in  a  mill  case  find  that  a  certain  number  of  acres  of  land 


122  Citations  to  the  Code  of  Virginia. 

belonging  to  A.  B.  will  be  overflowed,  estimated  at  a  certain 
price ;  and  that  all  other  damages  which  the  said  A.  B.  wall  sus- 
tain for  probable  injury  to  other  lands,  and  inconveniences,  are 
estimated  by  them  at  a  further  sum,  expressed  in  their  inquest,, 
it  is  special  enough. 

In  the  case  of  Coleman  {Executor  and  Trustee  of  Bowlett)  vs. 
Moody,  4  H.  &  M.,  1,  decided  May,  1809,  it  was  held  :  If  the 
jury  find  a  certain  number  of  acres  of  land  will  be  ovei-flowed, 
"together  with  all  other  damages  to  the  value  of  a  specified 
sum,"  it  is  special  enough,  and  will  not  bar  an  action  for  any 
damages  not  foreseen  and  estimated  by  them. 

An  order  of  court  granting  leave  to  erect  a  mill  is  valid, 
though  no  order  be  made  directing  the  payment  of  the  damages 
found  by  the  inquisition. 

An  inquisition  in  a  mill  case  ought  not  to  be  set  aside  on  the 
ground  that  the  jurors,  before  they  were  sworn,  and  afterwards,, 
when  their  verdict  had  been  agi-eed  upon,  but  before  they  had 
signed  it,  ate  and  drank  moderately  at  the  expense  of  the  appel- 
lant, no  corruption  appearing,  and  the  opposite  party  con- 
senting. 

It  is  sufficient  for  the  clerk  to  state  in  the  record  that  the 
writ  of  ad  quod  damnum;  with  the  inquisition  annexed,  was  re- 
turned by  the  sheriff,  without  inserting  a  copy  of  the  signature 
of  the  sheriff,  or  of  his  deputy,  to  the  return ;  a  copy  of  the  in- 
quisition itself,  with  the  signatures  of  the  jurors,  being  inserted 
in  the  record. 

In  the  case  of  Kownslar  vs.  Ward,  1  Va.  (Gilmer),  127,  de- 
cided October  14,  1820,  it  was  held :  It  is  as  necessary  that  an 
inquest  should  be  had  as  to  injuring  the  health  of  neighbors, 
obstructing  navigation,  etc.,  on  an  application  to  raise  a  mill- 
dam  already  erected,  as  to  construct  it  originally.  The  verdict 
in  such  a  case  responding  only  to  the  damage  done  a  contiguous 
owner  by  flooding  his  lands,  and  not  to  the  health  of  the  neigh- 
borhood, is  imperfect,  and  the  writ  will  be  quashed. 

In  the  case  of  Smith  vs.  Waddill,  11  Leigh,  532,  decided 
February,  1841,  S.  applied  to  the  county  court  for  leave  to  build 
a  water  grist-mill  and  dam  Upon  an  ad  qtiod  dammim  the  in- 
quisition found  "  that  the  health  of  the  neighbors  would  be  les& 
or  as  little  annoyed  as  it  was  possible  it  should  be  by  the  erec- 
tion of  any  dam  "  upon  return  of  the  inquisition.  W.  opposed 
the  grant  of  leave,  objecting  that  the  inquisition  was  insufficient 
and  defective  in  regard  to  the  effect  upon  health,  and  intimated 
that  if  that  objection  should  be  overruled,  he  should  offer  testi- 
mony on  that  point.  The  county  court  overruled  the  objection 
to  the  inquisition,  and  then  refused  to  hear  W.'s  testimony,  and 
gave  S.  leave  to  build  the  mill  and  dam ;  W.  appealed  to  the  circuit 
superior  court,  which  heard  the  testimony  he  had  to  offer,  but, 


Citations  to  the  Code  of  Virginia.  123 

without  deciding  upon  it,  held :  That  the  inquisition  should  be 
quashed,  and  the  cause  remanded  to  the  county  court.  Upon 
appeal  taken  by  S.  to  this  court,  held :  That  the  inquisition  was 
sufficient,  and  the  circuit  superior  court  erred  in  quashing  it, 
but  the  county  court  also  erred  in  refusing  to  hear  the  testimony 
offered  by  W.,  and  so  the  orders  of  both  courts  were  erroneous; 
that  the  order  of  the  circuit  superior  court  should  be  reversed 
with  costs,  and  the  cause  remanded  to  that  court,  to  be  there 
heard  and  decided  upon  the  evidence  and  the  merits. 

Section  1353. 
In  the  case  of  Wood  vs.  Boiighan,  1  Call,  «330,  2d  edition, 
285,  decided  May  14,  1798,  the  court  below  directed  an 
issue  to  try  the  title,  and  as  the  parties  acquiesced  therein,  it 
was  held  that  the  error  was  waived.  But  such  a  verdict  is  not 
conclusive,  as  it  can  only  be  for  the  information  of  the  court. 
See  Eppes  vs.  Cralle,  1  Munf.,  258;  see  1350,  supra. 

In  the  case  of  Hanoell  vs.  Bennett  &  Walker,  1  Rand,,  282, 
decided  January,  1823,  it  was  held :  On  the  trial  of  a  writ  of 
ad  quod  daininim  to  erect  a  mill-dam,  one  of  the  jurors  who 
signed  the  inquisition  gave  evidence  that  the  sheriff  who  took 
the  inquisition  declared,  in  the  presence  of  himself  and  another 
juror,  that  the  defendant  had  consented  to  the  erection  of  the 
mill-dam,  in  consequence  of  which  he,  the  juror,  had  agreed  to 
sign  the  inquisition.  This  will  not  be  a  sufficient  reason  for 
quashing  the  inquisition. 

In  the  case  of  Creyishaio  vs.  Tlie  Slate  River  Company,  6 
Rand.,  245,  decided  March,  1828,  it  was  held :  Mills  are  con- 
sidered by  our  laws  as  great  public  conveniences  and  benefits: 
they  are  regulated  by  law ;  they  are  never  established  except 
on  the  inquisition  of  a  jury;  amongst  other  things,  the  jury  are 
bound  to  inquire  whether  ordinary  navigation  will  be  obstructed, 
and  if  they  report  that  it  will  not,  then  leave  is  granted  to  erect 
the  mill,  without  any  condition  as  to  navigation.  Such  a  grant, 
under  such  precautionary  proceedings,  is  a  perfect  one,  and 
vests  in  the  grantee  all  the  public  right  to  the  stream,  or  so 
much  thereof  as  is  necessary  to  the  full  enjoyment  of  the  mill 
erected  under  the  order. 

After  a  mill  has  been  established  and  a  mill  erected  accord- 
ing to  law,  whereby  the  use  of  the  water  for  grinding  has  been 
igranted  to  the  mill  owner,  a  subsequent  act  of  assembly  which 
limposes  on  him  the  burden  of  erecting  locks  through  his  dam, 
K)f  keeping  the  locks  in  repair,  and  of  giving  attendance  at  the 
locks,  so  as  to  admit  the  passage  of  boats,  and,  on  his  failure, 
rests  in  a  company  the  power  to  abate  the  dam  as  a  nuisance, 
dthout  a  full  indemnification  and  equivalent  for  the  injury  thus 
lone  to  his  vested  rights,  is  contrary  to  the  Constitution  of  the 
Jtate,  and  void. 


124  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Anthony  et  als.  vs.  Lawhorne,  1  Leigh,  1,  decided 
January,  1829,  it  was  held :  L.,  owning  lands  on  both  sides  of  a 
stream,  asked  leave  of  court  to  build  a  mill  upon  and  dam  across 
it ;  it  was  found  by  inquest,  on  an  ad  quod  damnum,,  that  lands 
in  the  possession  of  A.  of  the  value  of  thirty -five  dollars  would 
be  overflowed;  the  court  on  a  hearing,  being  of  opinion  that 
these  lands  belonged  not  to  A.  but  to  L.  himself,  granted  L. 
leave  to  build  his  dam  without  paying  any  damages  to  A.  Held : 
Error,  for  the  right  in  the  lands  could  not  be  thus  collaterally 
tried. 

In  such  case  leave  should  be  granted  only  on  condition  that  L. 
pay  A.  the  damages  assessed  by  the  jury ;  and  L.  might  build  his 
dam  at  his  peril  without  paying  them,  and  then  defend  A.'s 
action  against  him  on  the  ground  that  the  lands  overflowed  were 
his  own,  and  thus  put  the  title  directly  in  issue. 

In  the  case  of  Humes  vs.  Shugart,  10  Leigh,  332,  2d  edition, 
343,  decided  July,  1839,  it  was  held :  After  a  county  court  has 
granted  leave  to  one  applicant  to  build  a  mill,  if  application  be 
made  by  another  to  build  a  mill  lower  down  upon  the  same 
stream,  and  the  party  who  first  obtained  leave  show  that  the 
dam  for  the  second  mill  would  be  several  feet  higher  than  the 
fall  between  the  two  mill-seats,  and  would,  if  built,  destroy  the 
privilege  previously  granted  to  him,  the  court,  in  the  exercise  of 
a  sound  discretion,  ought  to  refuse  the  second  application. 
Though  the  leave  first  given  to  build  a  mill  be  granted  while  a 
prior  application  to  build  lower  down  upon  the  same  stream  is 
pending,  yet  if  the  order  granting  this  privilege  remain  in  full 
force,  unreversed  and  not  appealed  from,  and  it  be  shown  that  the 
privilege  so  granted  would  be  destroyed  by  allowing  the  other, 
that  other  ought  not  to  be  granted. 

In  the  case  of  Hunter  vs.  Matthews,  12  Leigh,  228,  decided 
April,  1841,  petition  for  leave  to  build  a  mill  and  dam  across 
water-course;  ad  quod  damnum  awarded,  and  inquisition  re- 
turned ;  motion  by  a  person  appearing  by  the  inquisition  to  be 
interested,  and  admitted  defendant  to  oppose  the  application,  to 
quash  the  inquisition  on  the  ground  that  two  of  the  jurors  em- 
pannelled  on  the  inquest  had  been  of  the  jury  who  had  found  an 
inquisition  on  a  former  ad  quod  damnum  in  the  same  case ; 
though  it  appeared  that  the  point  now  in  controversy  could  not 
have  been  presented  for  consideration  of  the  jury  on  the  first 
inquest,  yet  held :  That  the  inquisition  ought  for  that  cause  to 
be  quashed. 

In  a  mill  case,  county  court  overrules  motion  to  quash  the  in- 
quisition, proceeds  to  hear  the  cause  on  the  merits,  and  gives 
leave  to  build  mill  and  dam;  upon  appeal  to  circuit  superior 
court,  judgment  reversed,  inquisition  quashed,  and  judgment  for 
defendant,  without  prejudice  to  a  future  application  for  a  new 


Citations  to  the  Code  of  Virginia.  125 

ad  quod  damnum.  Held :  The  circuit  superior  court  ought  to 
have  remanded  the  cause  to  the  county  court  for  further  pro- 
ceedings to  be  there  had. 

In  the  case  of  Hunter  vs.  Matthews,  1  Rob.,  468,  2d  edition, 
494. 

The  jury,  empannelled  under  a  writ  of  ad  quod  damnum, 
awarded  on  an  appKcation  for  leave  to  build  a  mill,  having 
found  difficulty  in  agreeing  upon  the  damages  to  be  assessed  for 
the  overflowing  of  certain  land,  it  is  announced  by  the  sheriff 
that  they  are  not  likely  to  agree  on  a  verdict ;  whereupon  the  ap- 
plicant requests  that  the  jury  will  make  another  effort  to  come 
to  an  agreement,  saying  the  business  is  a  tedious  and  trouble- 
some one,  and  he  is  willing  to  pay  whatever  damages  they  may 
think  reasonable.  A  juror  then  states  that  the  other  jurors  wish 
to  assess  an  amount  of  damages  which  he  himself  thinks  too 
large,  and  that  he  is  unwilling  to  concur  with  them  unless  the 
applicant  will  consent  to  pay  the  damages;  and  he  puts  the 
question  to  the  applicant  whether  he  is  willing  to  pay  the 
amount  (naming  it)  which  the  other  jurors  have  fixed  upon. 
The  applicant  replies  that  he  is,  and  this  juror  thereupon  con- 
curring with  the  others,  the  inquisition  is  completed.  The  com- 
munications aforesaid  take  place  openly,  before  the  sheriff  and 
all  the  jurors,  as  well  as  other  persons  assembled,  though  the 
owner  of  the  land  to  be  overflowed  is  not  present  at  the  taking  of 
the  inquisition.  Held :  This  is  not  such  an  interference  of  the 
applicant  with  the  jury  as  to  make  it  proper  to  set  aside  the 
inquisition. 

In  the  case  of  Musie  vs.  Smith,  2  Rob.,  458,  decided  No- 
vember, 1843,  it  was  held :  The  finding  of  a  jury  in  such  case  is 
merely  e-\ddence,  and  the  weight  of  it,  under  all  the  circum- 
stances, a  matter  for  the  discretion  of  the  court. 

Upon  the  return  of  the  certificate  of  the  jury  that,  in  their 
opinion,  public  convenience  would  result  from  the  establish- 
ment of  a  proposed  ferry,  evidence  is  introduced — 

1.  Of  one  of  the  jurors,  who  proved  that  before  he  was 
sworn  he  had  made  up  an  opinion  that  the  ferry  would  be  a 
public  convenience ;  that  he  thought  it  probable  that  he  might 
have  expressed  this  opinion,  though  he  did  not  recollect  to  have 
done  so ;  that  he  had,  before  he  was  sworn,  signed  a  petition 
for  said  ferry ;  and  that  at  the  time  he  was  sworn  he  was  unin- 
fluenced by  the  said  opinion,  and  prepared  to  render  an  impar- 
tial verdict. 

2.  Of  another  juror,  who  proved  the  Hke  facts  with  regard 
to  himself,  and  also  that  he  had  expressed  his  opinion. 

3.  Of  another  juror,  who  proved  the  same  facts  with  regard 
to  himself  tlia?t  the  second  had  proved  with  regard  to  himself, 
and  also  that  he  had  circulated  a  petition  for  the  ferry. 


126  Citations  to  the  Code  of  Virginia. 

Upon  this  evidence  the  county  court  quashed  the  finding  of 
the  jury,  and  the  circuit  court  reversed  the  judgment  of  the 
county  court.     Held  :  The  judgment  of  the  circuit  court  is  right. 

In  the  case  of  Mairs  vs.  Gallahue,  9  Grat.,  94,  decided  July 
26,  1852,  the  judgment  of  the  court  giving  leave  to  erect  a  dam 
provides  that  the  appUcant  shall  keep  a  ferry-boat  at  the  cross- 
ing of  a  public  road  over  the  stream  across  which  the  dam  is  to 
be  erected.  Held :  This  is  authorized  by  the  statute  (2  Rev. 
Code,  225,  Sec.  5 ;  1887,  Sec.  1353) ;  and  as  the  county  and  cir- 
cuit courts  have  held,  upon  the  proofs,  that  a  ferry-boat  at  that 
place  will  sufficiently  remedy  any  impediment  to  the  crossing  of 
the  stream,  the  court  of  appeals  will  presume  they  acted  rightly, 
nothing  being  shown  to  the  contrary. 

The  duty  of  keeping  up  the  ferry-boat  is  not  merely  personal 
to  the  grantee  of  the  privilege  of  erecting  the  dam,  but  it  is  a 
condition  and  incident  of  the  grant,  and  attaches  to  it  into 
whose  hands  soever  it  may  come.  The  kind  of  boat  to  be  kept 
must  be  such  an  one  as  the  exigencies  of  the  travel  and  trade  on 
the  road  shall  require.  It  is  the  duty  of  the  party  required  to 
keep  up  the  ferry-boat  to  ferry  the  public  over  the  stream  with- 
out charge. 

In  the  case  of  Ellis  vs.  Harris's  Executor,  32  Grat.,  684,  de- 
cided February  6,  1880,  it  was  held :  In  an  action  by  E.  against 
H.'s  executors  to  recover  damages  for  injury  to  his  land  by  the 
overflowing  and  sobbing  of  his  land  lying  on  a  stream  on  which 
H.  had  built  a  dam  in  1848,  in  the  county  of  Louisa,  evidence 
of  the  effect  of  a  dam  in  raising  the  bottom  of  the  stream  above 
the  dams  in  the  county  of  Albemarle  is  inadmissible. 

A  person  who  all  his  lifetime  had  been  familiar  with  the  effect 
of  the  dam  upon  the  channel  of  a  stream,  and  who  had  twice 
superintended  the  putting  up  the  dam,  and  was  also  familiar 
with  its  effect  upon  the  channel  of  the  stream  when  the  dam 
was  washed  away  by  the  flood,  but  who  was  not  a  millright  or 
a  mechanic  of  any  sort,  but  only  a  farmer  and  owner  of  the 
mill,  is  not  competent  to  give  witness  as  an  expert  as  to  the 
effect  of  a  dam  upon  a  stream  in  another  county  thirty  miles 
distant. 

H.,  who  built  the  dam,  being  dead,  the  plaintiff,  E.,  is  not  a 
competent  witness  to  prove  anything  occurring  in  the  lifetime 
of  H.  The  executor  of  H.,  though  a  part  owner  of  the  land 
on  which  the  mill  was  built,  is  a  competent  witness  in  the  case. 

E.  having  sued  H.  in  his  lifetime  for  damages  to  his  land 
from  the  erection  of  the  dam,  and  a  judgment  in  that  case 
having  been  rendered  in  1859  in  favor  of  H.,  in  this  second  suit 
E.  can  only  recover  for  damages  occasioned  by  the  continuance 
of  the  dam  subsequently. 

E.  may  recover  full  damage  for  all  the  land  owned  by  him  at 


Citations  to  the  'Code  of  Virginia.  127 

the  time  of  the  erection  of  the  dam.  But  for  land  since  ac- 
quired by  him  he  can  only  recover  such  damages  as  were  not 
actually  foreseen  and  estimated  for  by  the  jury  when  the  dam 
was  built;  and  the  jury  must  presume  that  the  jury  of  inquest 
and  the  county  court  did  foresee  and  estimate  for  all  damages 
which  it  was  then  practicable  to  foresee  and  estimate  for. 

Section  1354. 

In  the  case  of  Rowlet€s  Executor  vs.  Moody,  4  H.  &  M.,  2, 
decided  May  3,  1809,  it  was  held :  An  order  of  the  court  grant- 
ing leave  to  erect  a  mill  is  valid,  though  no  order  be  made 
directing  payment  of  damages  found  by  the  inquisition. 

In  the  case  of  Young  vs.  Price  et  als.,  2  Munf.,  534,  decided 
December  1,  1811,  it  was  held:  Under  circumstances,  the  pay- 
ment of  the  damages  assessed  in  a  mill  case  ought  to  be  pre- 
sumed, especially  if  great  length  of  time  has  elapsed,  during 
which  the  owner  of  the  land,  to  whom  such  damages  were 
assessed,  acquiesced  in  the  building  of  the  mill,  without  claim 
or  objection  on  his  part. 

In  the  case  of  Dimmeit  et  als.  vs.  Eskrldge,  6  Munf.,  308, 
decided  March  3,  1819,  it  was  held :  In  trespass  for  destroying 
a  mill-dam  erected  by  the  plaintiff,  who  gives  in  evidence  the 
transcript  of  an  inquisition  upon  a  writ  of  ad  quod  dainnum,  the 
county  court,  on  the  defendant's  motion,  ought  to  instruct  the 
jury  that  it  was  incumbent  upon  the  plaintiff  to  erect  his  dam 
in  the  position  prescribed  in  the  said  inquisition,  and  if  they 
be  satisfied  that  the  said  dam  was  erected  in  a  different  position, 
in  consequence  whereof  a  ford  across  the  stream,  being  a  part 
of  a  public  road  legally  established,  was  obstructed  and  shut 
up,  that  such  dam  was  a  public  nuisance  and  abatable  by  the 
defendants. 

In  trespass  for  destroying  a  mill-dam,  if  the  defendants  plead 
that  the  said  dam  was  unlawfully  erected  by  the  plaintiff  in  a 
ford  where  a  public  road  crossed  the  stream,  whereby  the  said 
road  and  ford  were  obstructed,  to  the  great  damage  and  nuis- 
ance of  the  citizens  of  the  Commonwealth ;  and  that  the  defend- 
ants, in  order  to  abate  the  said  nuisance  peaceably,  cut  down 
and  removed  a  part  of  the  said  dam ;  and  the  plaintiff's  reply, 
that  he  did  not,  by  erecting  the  said  dam,  entirely  obstruct  the 
said  public  road  and  ford,  and  that  the  citizens  of  this  Com- 
monwealth were  not  altogether  prevented  from  passing  the  same ; 
whereupon  issue  being  joined,  such  issue  is  immaterial,  and, 
after  a  verdict  for  the  plaintiff,  ought  to  be  set  aside,  and  a  re- 
pleader directed. 

In  the  case  of  Hunter  vs.  Mattkeios,  1  Kob.,  4G8,  2d  edition, 
494,  where,  upon  an  application  to  a  county  court  for  leave  to 
erect  a  mill  and  dam,  the  inquisition  finds  that  a  certain  quantity 


128  Citations  to  the  Code  of  Virginia. 

of  land  not  belonging  to  the  applicant  will  be  overflowed,  and 
assesses  damages  to  the  proprietor,  it  is  erroneous  for  the  judg- 
ment granting  leave  to  erect  the  mill  and  dam  to  provide  that 
upon  payment  of  the  damages  so  assessed,  the  land  overflowed 
shall  become  vested  in  the  applicant  in  fee-simple ;  and  upon 
appeal  to  the  circuit  court  by  the  proprietor  of  the  land,  that 
court  must  reverse  the  judgment  with  costs,  though  the  appellee 
himself  suggest  the  error  and  move  that  it  be  corrected. 

The  decision  in  the  case  of  Pitzer  vs.  Willia7ns,  2  Eob.,  253, 
does  not  construe  this  section.  It  is  an  error.  This  section  was 
only  used  in  that  case  as  an  argument  to  prove  that  notice  can 
only  be  given  a  fee-simple  owner  where  land  is  to  be  taken  for 
public  improvements,  which  position  the  supreme  court  held 
untenable. 

Section  1358. 

In  the  case  of  Commonwealth  vs.  Fanns,  5  Rand.,  691,  de- 
cided in  the  General  Court  November,  1827,  it  was  held: 
Although  leave  has  been  given  by  the  county  court  to  erect  a 
mill  according  to  the  provisions  of  the  statute,  yet  that  is  no 
bar  to  a  public  prosecution  or  private  action  for  injuries  other 
than  those  actually  foreseen  and  estimated  by  the  inquest. 

An  indictment  for  a  nuisance  which  concludes  to  the  common 
nuisance  of  divers  of  the  Commonwealth's  citizens  is  not  suf- 
ficient. It  ought  to  be  laid  to  the  common  nuisance  of  all  the 
citizens  of  the  Commonwealth  residing  in  the  neighborhood ;  of 
all  the  citizens,  etc.,  residing,  etc.,  and  passing  thereby. 

In  the  case  of  Miller  vs.  Trueheart^  4  Leigh,  569,  decided  No- 
vember, 1833,  a  mill  and  mill-dam  is  erected  in  1815,  by  leave 
of  court,  according  to  the  statute  concerning  mills,  etc.  The 
stagnation  of  the  water  in  the  mill-pond  proves  injurious  to  the 
health  of  the  neighborhood,  and  one  of  the  neighbors  thereby 
injured  brings  action  against  the  mill-owners  and  recovers 
damages  at  law.  About  the  time  of  this  recovery  the  mill-dam 
is  carried  away  and  the  pond  drained,  and  the  mill  owners, 
after  the  recovery,  are  proceeding  to  rebuild  the  mill-dam,  pro- 
posing certain  expedients  to  prevent  the  stagnation  of  the  water 
from  again  being  injurious  to  the  health  of  the  neighborhood. 
Held :  A  coui*t  of  chancery,  upon  a  bill  filed  by  the  person  wha 
recovered  the  judgment  at  law  against  the  mill  owners,  may  and 
ought  to  interfere  and  enjoin  them  from  rebuilding  the  dam,  un- 
less it  shall  appear  that  the  expedients  proposed  by  the  mill 
owners  will  be  effectual  to  prevent  the  mischief  in  future,  which 
ought  to  be  ascertained  by  a  jury  upon  an  issue  directed  for  the 
purpose. 

In  the  case  of  Calhoun  vs.  Palmer,  8  Grat.,  88,  decided  Sep- 
tember 4,  1851,  A.  gives  and  conveys  to  his  son  B.  a  lot  of  land, 
on  which  is  a  mill-seat.     B.  then  aiaplies  to  the  county  court  for 


Citations  to  the  Code  of  Virginia.  129 

leave  to  build  a  mill  and  dam,  and  when  the  inquest  meets  on 
the  land  A.  attends,  and  when  the  jury  propose  to  level  the 
stream  to  ascertain  how  high  B.  may  be  permitted  to  build  his 
dam,  A.  tells  them  he  has  levelled  it,  and  that  B.  may  be  per- 
mitted to  build  a  dam  twelve  feet  high  without  flowing  the  water 
on  the  land  of  any  person  but  A. ;  that  such  a  dam  will  hurt  no 
one  but  himself,  and  he  does  not  believe  it  will  hurt  himself. 
The  jury  acts  upon  his  opinions  and  information,  and  allows  B. 
to  build  a  dam  twelve  feet  high,  and  reports  that  it  will  inflict  no 
damage  on  any  person  ;  and  this  inquisition  is  confirmed  by  the 
court,  and  leave  is  given  to  build  the  dam.  B.  builds  his  dam 
ten  feet  high.  Afterwards  he  raises  the  water  about  six  inches 
by  putting  boards  on  the  top  of  the  dam,  and  of  this  A.  com- 
plains, and  B.  takes  them  ofl';  and  in  the  ten  years  that  B.  keeps 
the  mill  he  does  not  attempt  to  raise  the  dam.  A.  becoming 
embarrassed,  B.  determines  to  sell  the  property  to  relieve  him, 
and  A.  adds  twenty  acres  to  that  owned  by  B.,  and  they  join  in  the 
conveyance  of  the  whole  to  C.  After  C.  takes  possession  of  the 
mill  he  ascertains  that  the  inquisition  authorized  the  dam  to  be 
built  twelve  feet  high,  and  he  elevates  it  eight  inches,  which  se- 
riously injures  the  land  of  A.,  which  lies  immediately  above  on 
the  stream  ;  whereupon  A.  sues  C.  for  the  damages  occasioned 
by  the  raising  of  the  dam.     Held : 

1.  That  the  inquest  and  judgment  of  the  court  is  no  bar 
to  an  action  for  damages  sustained  by  A.  which  were  not  ac- 
tually foreseen  and  estimated  by  the  inquest. 

2.  That  as  C.  relied  on  the  inquisition  and  judgment  of 
the  court  authorizing  the  dam  as  the  ground  of  his  defence,  it  is 
not  competent  for  him  to  deny  the  ownership  of  the  land  by  B. 
at  the  time  of  said  proceedings,  or  to  assert  the  continued 
ownership  of  the  land  by  A. 

3.  That  the  right  of  A.  to  recover  damages  for  the  injury 
arising  from  raising  the  dam  by  C.  is  not  defeated  by  the  con- 
duct of  A.  at  the  time  the  inquest  was  taken. 

4.  That  the  fact  that  B.  did  not  raise  the  dam  in  the  first  in- 
stance to  the  height  authorized  by  the  inquest  did  not  have 
the  effect  of  precluding  him  from  raising  it  to  the  full  height 
authorized  by  the  inquest,  provided  by  so  doing  he  did  not  oc- 
casion injury  to  others. 

5.  That  A.,  having  united  in  the  conveyance  to  C,  he  cannot 
recover  damages  against  C.  for  any  injury  done  him  by  any  re- 
flow  of  the  water  to  the  extent  the  injury  existed  at  the  time  of 
the  conveyance. 

In  the  case  of  .S'.  S.  E.  li.  Co.  vs.  Daniel,  20  Grat.,  344,  de- 
cided March  13,  1871,  a  railroad  company  has  the  land  of  K. 
condemned  for  its  road,  and  the  commissioners  assess  the  dam- 
ages, and  their  report  is  confirmed,  and  the  company  pay  the 
9 


130  Citations  to  the  Code  of  Virginia. 

amount  of  damages  assessed  to  E.  K.  sells  tlie  land  to  D. 
Held :  D.  may  maintain  an  action  against  the  companj^  for  in- 
jury done  his  land  since  the  purchase,  which  could  not  be  fore- 
seen and  estimated  by  the  commission. 

In  such  cases  the  assessment  of  damages  is  only  a  bar  to  an 
action  for  such  injuries  as  could  have  been  properly  included  in 
such  assessment.  The  commissioners  are  bound  that  the  com- 
pany will  construct  its  works  in  a  proper  manner,  and  they  have 
no  right  to  award  damages  upon  the  supposition  that  the  com- 
pany will  neghgently  and  improperly  perform  its  work.  A 
failure  to  do  so  by  the  company  will  therefore  impose  a  liability 
on  any  one  who  may  sustain  any  loss  or  injury  by  reason  of 
such  negligence. 

In  the  case  of  Field  vs.  Brown,  24  Grat.,  74  and  96,  decided 
November  26,  1873.  In  an  action  by  F.  against  B.  for  injury  to 
his  land  by  B.  continuing  a  dam  across  the  stream  which  had 
been  erected  by  a  previous  owner,  the  defence  of  B.  is  that  of 
adversary  possession  by  him  and  those  under  whom  he  claims  for 
more  than  twenty  years.  To  rebxit  the  presumption  arising 
from  the  possession,  F.  may  prove  what  passed  between  his 
agent  and  M.,  a  former  occupant  of  the  premises  of  B.,  showing 
that  the  agent  of  B.  denied  the  right  of  M.  to  raise  the  dam, 
and  that  M.  asked  it  as  a  privilege  for  a  short  time. 

Proof  of  adversary  possession  for  twenty  years,  such  as  would 
create  the  presumption  of  a  grant,  is  only  presumptive,  and  not 
conclusive,  and  may  be  rebutted  by  evidence  showing  that  the 
adversary  use  and  enjoyment  relied  on  was  not  acquiesced  in, 
but  the  right  thereto  was  contested,  and  any  evidence  tending  to 
show  such  resistance  is  proper  evidence  to  rebut  such  presump- 
tion. 

To  rebut  the  defendant's  evidence  of  adversarr  possession 
for  twenty  years  under  such  circumstances  as  would  give  him  a 
prescriptive  right  to  a  dam  across  a  stream,  the  record  of  a  suit 
by  the  plaintiff  against  the  administrator  of  a  former  owner  of 
the  premises,  under  whom  the  defendant  claims,  brought  within 
twenty  years  from  the  date  of  the  raising  of  the  dam  for  the  in- 
jury sustained  by  the  same,  and  in  which  the  plaintiff  recovered 
damages,  is  competent  evidence  for  the  plaintiff. 
_  Instructions  asked  by  the  plaintiff,  based  upon  the  assump- 
tion that  there  can  be  no  legal  dam  across  a  water-course,  unless 
established  by  legal  proceeding  under  the  act  of  Assembly,  ig- 
noring entirely  rights  acquired  by  actual  grant,  by  permission, 
and  by  presumptive  right,  derived"^from  long  use  and  enjoyment, 
where  there  is  any  evidence  in  respect  to  such  right,  were  pro- 
perly refused. 

The  fact  that  a  dam  was  built  in  1824  by  G.,  and  that  from 
that  time  he  and  those  claiming  under  him  have  claimed  and 


Citations  to  the  Code  of  Virginia.  131 

held  the  possession  and  use  thereof,  and  of  the  water-power  on 
the  stream  afforded  by  said  dam,  and  used  in  working  the  mill, 
for  the  use  of  which  it  was  built,  adversely  and  uninterruptedly 
as  to  the  plaintiff"  and  those  under  whom  he  claims,  for  twenty 
years  from  the  building  of  the  dam,  is  not  conclusive  of  the 
defendant  to  continue  said  possession  and  use  of  said  dam  and 
mill,  but  is  only  presumptive,  and  may  be  rebutted  by  circum- 
stances. 

In  1824,  G.  built  a  dam  across  H.  river,  and  that  did  the 
land  of  F.  on  H.  above  the  dam  no  injury ;  but  in  1845,  G.  raised 
his  dam,  and  that  did  injure  the  land  of  F.  F.  sues  B.,  who 
claims  under  G.,  for  continuing  the  dam  to  the  injury  of  his  land, 
and  in  his  declaration  recites  that  G.  erected  the  dam  without 
authority  of  law.  Under  this  declaration  F.  may  prove  that  the 
dam  was  raised  in  1845,  and  the  injury  to  his  land  done  by  rais- 
ing it. 

CHAPTEE  LXII. 

Section  1374. 
In  the  case  of  Carter  vs.  Coramonwealth,  2  Va.  Cases,  354, 
decided  by  the  general  court,  it  was  held :  The  discontinuance 
of  a  ferry  is  a  penalty  which  the  law  attaches  to  the  failure  of 
the  ferry-keeper  to  exercise  his  privilege  of  keeping  up  his 
ferry.     It  is  not  an  offence,  much  less  an  indictable  offence. 

Section  1375. 

In  the  case  of  Zane  vs.  Zane,  2  Va.  Cases,  63,  decided  by  the 
General  Court,  it  was  held :  In  an  application  to  the  county  court 
to  establish  a  ferry,  the  applicant  should  show  in  his  petition 
that  he  owns  the  land  either  on  both  sides  or  on  one  side  of  the 
stream,  and  that  a  public  road  has  been  established  through  the 
land  to  the  place  where  the  ferry  is  sought  to  be  established. 
The  statute  does  not  authorize  the  county  court  to  estabhsh  a 
ferr}'^  across  a  stream  which  is  the  boundary  of  the  State. 

In  the  case  of  Somerville  vs.  Wimbish,  7  Grat.,  205,  decided 
December  9,  1850,  it  was  held  :  A  ferry  franchise  in  Virginia  is 
the  creature  of  the  statute  law,  and  the  rights  of  the  owner  of 
the  franchise  are  to  be  measured  by  the  statute.  Though  a 
ferry  has  been  established  any  length  of  time  across  a  river,  it  is 
competent  for  the  legislature  to  establish  another  ferry  from  the 
opposite  side  of  the  river,  to  pass  along  the  same  line  used  by 
the  first ;  and  this  is  no  invasion  of  the  franchise  of  the  owner 
of  the  first  ferry. 

The  establishment  of  such  a  ferry  confers  upon  the  owner  no 
title  to  any  portion  of  the  soil  on  the  opposite  side  of  the 
stream,  and  no  easement  there  beyond  the  incidental  delegation 
of  such  as  has  been  theretofore  or  may  thereafter  be  acquired 


132  Citations  to  the  Code  of  Virginia. 

by  the  public  as  a  highwaj^.  Qucenre,  if  in  such  a  case  the  ferry 
franchise  will  carry  wivh  it  the  privilege  of  using  any  public 
roads  on  the  opposite  lands  for  the  purpose  of  landing  or  taking 
in  passengers?  The  order  of  the  county  court  directing  the  jus- 
tices to  be  summoned  to  consider  the  verdict  of  the  jury  in 
ferry  cases  may  be  executed  by  leaving  a  notice  in  the  mode  de- 
scribed in  the  general  law  in  relation  to  notices.  A  person  who 
signed  a  memorial  to  the  legislature  for  the  estabHshment  of  a 
ferry  is  not  thereby  rendered  incompetent  to  act  on  the  jury. 

In  the  case  of  AVimUsTi  vs.  Breeden,  11  Va.,  324,  decided 
March  29,  1883,  it  was  held :  Code  1873,  Chapter  64,  confers 
on  the  county  courts  jurisdiction  to  establish  ferries;  wdien  in  any 
particular  case  jurisdiction  is  acquired,  the  failure  of  the  court 
in  the  progress  of  the  case  to  comply  with  the  statute  in  details 
may  be  error  reviewable  on  appeal,  but  is  no  ground  to  attack 
the  judgment  collaterally. 

Section  12  of  that  chapter  requires  the  person  desiring  to 
establish  a  ferry  "  to  own  or  to  have  contracted  for  the  use  of 
land  at  the  point  at  which  he  wishes  to  establish  the  same." 
Where  the  lessee  of  such  land,  the  owner  of  the  equity  of  re- 
demption therein,  and  trustees  holding  the  legal  title  unite  in 
the  application,  that  statute  is  complied  with. 

Section  1376. 
In  the  case  of  Muire  vs.  Smithy  2  Rob.,  458,  decided  Novem- 
ber, 1843,  it  was  held :  The  finding  of  the  jury  in  such  a  case  is 
merely  evidence,  and  the  weight  of  it,  under  all  the  circum- 
stances, a  matter  for  the  discretion  of  the  court.  Upon  the  return 
of  the  certificate  of  a  jury,  that,  in  their  opinion,  public  con- 
venience would  result  from  the  establishment  of  a  proposed 
ferry,  evidence  is  introduced : 

1.  Of  one  of  the  jurors,  who  proved  that  before  he  was 
sworn  he  had  made  up  an  opinion  that  the  ferry  would  be  a 
pubhc  convenience ;  that  he  thought  it  probable  he  might  have 
expressed  this  opinion,  though  he  did  not  recollect  having  done 
so ;  that  he  had,  before  being  sworn,  signed  a  petition  for  said 
ferry,  and  that  at  the  time  he  was  sworn  he  was  aninfluenced 
by  the  said  opinion,  and  prepared  to  render  an  impartial  ver- 
dict. 

2.  Of  another  juror,  who  proved  like  facts  with  regard  to 
himself,  and  also  that  he  had  expressed  his  opinion. 

3.  Of  another  juror,  who  proved  the  same  facts  in  regard  to 
himself  that  the  second  had  proved  with  regard  to  himself,  and 
also  that  he  had  circulated  a  petition  for  the  ferry. 

Upon  this  evidence  the  county  court  quashed  the  finding  of 
the  jury,  and  the  circuit  court  reversed  the  judgment  of  the 
county  court.     Held :  The  judgment  of  the  circuit  court  is  right. 


I 


Citations  to  the  Code  of  Virginia.  133 

Section  1381. 
In  the  case  of  Trent  vs.  Cartersville  Bridge  Company,  11 
Leigh,  521,  decided  February,  1841,  it  was  held:  If  a  public 
ferry  has  been  disused  for  more  than  three  years,  though  the 
franchise  of  the  ferry  owner  has  not  been  declared  forfeited  on 
quo  warranto  or  other  like  proceedings,  he  is  not  entitled  to  the 
aid  of  a  court  of  equity  to  prevent  others  from  invading  the 
franchise  which  he  has  abandoned  by  such  non  user  under  the 
statute.  And  it  seems  he  cannot  maintain  an  action  at  law  to 
vindicate  such  a  franchise  so  abandoned  by  non  user. 

Section  1386. 

In  the  case  of  The  Tuckahoe  Canal  Company  vs.  The  TucJca- 
hoe  (&  James  River  Railroad  Company,  11  Leigh,  42,  decided 
March,  1840,  it  was  held  :  A  monopoly  cannot  be  implied  from 
the  mere  grant  of  a  charter  to  a  company  to  construct  a  work  of 
public  improvement,  and  to  take  the  profits ;  to  give  such  mo- 
nopoly, there  must  be  an  express  provision  in  the  charter, 
whereby  the  legislature  restrains  itself  from  granting  charters 
for  rival  and  competing  works. 

Section  1388. 

In  the  case  of  Flecker  vs.  Rhodes,  30  Grat.,  795,  decided  Sep- 
tember, 1878,  it  was  held,  p.  801 :  The  General  Assembly  has 
the  power  to  authorize  an  individual  to  build  a  toll-bridge  over 
a  river. 

The  act  authorizing  the  building  of  the  toll-bridge  authorizes 
the  individual  to  purchase  or  condemn  the  land  necessary  for 
the  abutments  or  way  to  the  bridge  in  the  mode  prescribed  by 
the  law.  The  act.  Chapter  56  of  the  Code  of  1873,  is  the  act 
to  govern  the  proceeding  to  condemn  the  land.  And  although 
that  act  does  not  refer  to  toll-bridges,  it  will  be  considered  as 
amended  by  the  act  authorizing  the  bridge.  When  the  statute 
confers  the  privilege  of  building  the  toll-bridge,  that  determines 
the  question  of  public  convenience,  and  the  only  question  to  be 
ascertained  by  the  proceedings  in  the  court  is  the  damages  to 
the  owners  of  the  land  condemned. 

The  act  authorizing  the  building  of  the  bridge  requires  that 
it  shall  be  commenced  in  six  months  and  completed  in  two 
years.     The  notice  to  owner  of  land,  of  motion  to  the  court  for 

I  the  appointment  of  commissioners  to  value  the  land  supposed 
to  be  condemned  was  morfe  than  six  months  after  the  passage 
of  the  act.  This  notice  was  not  necessary  to  the  commence- 
ment of  the  bridge,  and  does  not,  therefore,  show  that  the 
bridge  was  not  commenced  in  six  months.  The  completion  of 
the  bridge  in  two  years  having  been  hindered  by  the  owner  of 


134  Citations  to  the  Code  of  Virginia. 

of  the  county  court  confirming  the  report  of  the  commissioners, 
he  will  not  be  allowed  to  set  up  the  forfeiture.  It  is  a  matter 
for  the  Commonwealth  to  determine  whether  the  forfeiture  shall 
be  enforced. 


TITLE  XXI. 
CHAPTEE  LXIII. 

Section  1394. 

In  the  case  of  Protestant  Episcopal  Educational  Society  vs. 
Churchman's  Reps.,  80  Va.,  718,  decided  September  25,  1885: 
Testator,  in  1880,  bequeathed  money  to  be  invested  by  a  fidu- 
ciary, giving  ample  security  in  safe  interest-bearing  funds, 
the  interest  only  to  be  applied  to  the  use  of  his  legatee  during 
her  life,  and  at  her  death  "  the  principal  and  any  unexpended 
interest  to  be  paid  to  the  trustees  of  the  Protestant  Episcopal 
Educational  Society  of  Virginia"  (incorporated  in  1875),  "said 
bequest  to  be  used  exclusively  for  educating  poor  young  men 
for  the  Episcopal  ministry,  upon  the  basis  of  evangelical  prin- 
ciples as  now  established."  Held :  The  bequest  to  the  legatee 
corporation  is  not  nuU  and  void,  because  not  absolute  for  its 
own  use  as  a  corporate  body,  but  in  trust  to  be  exclusively  used 
for  the  trusts  therein  named,  and  because  those  trusts  are  re- 
hgious  in  their  character,  and  too  vague  and  indefinite  to  be 
upheld  by  the  law  of  this  State,  or  to  be  administered  as  con- 
templated by  Code  of  1873,  Chapter  77,  Section  2,  and  is 
enforceable  by  the  chancery  courts  of  this  State. 

Corporations  may  take  and  hold  estates  for  the  use  of  another, 
if  not  for  purposes  foreign  to  the  objects  of  their  creation ;  and 
a  devise  or  bequest  to  a  corporation  in  trust,  if  otherwise  valid, 
is  not  for  that  reason  void.  Where  in  the  nature  of  things  a 
trust  is  created,  it  is  immaterial  that  it  is  not  expressly  declared 
in  terms. 

In  a  legal  sense,  a  charity  is  a  gift  to  be  applied  consistently 
with  the  laws,  for  the  purpose  of  benefiting  an  indefinite  num- 
ber of  persons  in  any  respect  whatever,  and  it  is  not  material 
that  the  purpose  should  be  expressly  designated  as  charitable. 

As  exhibited  by  the  legislation  of  this  State,  there  has  never 
been  any  hostihty  here  to  bequests  for  religious  uses.  This 
court  has  never  decided  that  bequests  for  religious  uses  were 
void,  for  that  reason  alone. 

At  common  law,  chancery  courts  had  jurisdiction  to  enforce 
bequests  for  charitable  uses.  Statute  of  43  Elizabeth  did  not 
confer  such  jurisdiction,  but  only  created  an  auxiliary  remedy 
by  commission,  etc.  Said  statute  was  local,  and  never  iia 
force  here.     But  if  it  was  general  in  operation  in  some  respects. 


Citations  to  the  Code  of  Vieginia.  135 

it  was  not  repealed  by  the  act  of  1792,  but  in  those  respects 
was  preserved  by  the  saving  clause  of  that  act.  In  any  event, 
the  act  of  1839,  Code  1873,  Chapter  77,  clearly  validates  and 
makes  enforceable  all  gifts  for  such  purposes,  subject  to  certain 
restrictions  therein  contained. 

CHAPTEE  LXIV. 

In  the  case  of  Hardy  et  als.  vs.  Wiley  et  als.,  87  Va.,  125,  de- 
cided November  20,  1890,  it  was  held  :  Deed  conveying  to  trus- 
tees land  on  condition  that  they  build  thereon,  when  they 
thought  fit,  a  church,  and  permit  it  to  be  preached  in  by  certain 
persons,  and  to  be  used  "  for  such  other  purposes  as  should  be 
deemed  appropriate  and  necessary  to  further  the  cause  of 
Christ,"  contained  no  covenant  to  rebuild  on  condition  that  the 
land  revert  upon  failure  of  the  trustees  to  maintain  the  church. 
A  church  was  built  thereon,  and  used  as  long  as  it  was  fit  to 
use.  Held  :  The  trustees  may  seU  the  land  and  invest  the  pro- 
ceeds in  a  parsonage  for  the  same  congi'egation  in  connection 
with  a  new  church  on  a  different  lot ;  but  it  should  be  sold  in 
accordance  with  this  section  for  the  sale  of  church  property. 

Section  1396. 

In  the  case  of  Claughton  et  als.  vs.  MacWaughton,  2Munf.,513, 
decided  November  23,  1811,  it  was  held :  According  to  the 
spirit  of  the  act  "  concerning  the  glebe  lands  and  churches 
within  this  Commonwealth,"  passed  January  12,  1802,  no  glebe 
land  was  to  be  considered  vacant,  and  as  such  liable  to  be  sold, 
if  there  was  any  minister  who,  in  behalf  of  the  Protestant  Epis- 
copal Church,  had  been  put  into  possession,  and  was  the  incum- 
bent thereof  on  that  day,  whether  the  persons  acted  as  a  vestry, 
by  whom  he  was  inducted,  and  had  been  canonically  elected,  or  not. 

In  the  case  of  Cheatham's  Admr^  vs.  Bur  foot,  9  Leigh,  580, 
decided  December,  1838.  The  glebe  land  in  a  parish  having 
been  sold  by  the  overseers  of  the  poor  under  the  statute,  the 
proceeds  of  the  sale  are  paid  over,  by  direction  of  the  free- 
holders and  housekeepers  of  the  parish,  to  an  agent,  by  them 
appointed,  to  invest  the  same  in  bank  stock.  The  agent  makes 
the  investment,  receives  the  dividend  on  the  stock  during  his 
life,  and  dies  without  having  accounted  for  such  dividends. 
Then  a  bill  is  exhibited  against  one  of  his  administrators  by 
one  of  the  freeholders  and  housekeepers  of  the  parish,  suing  as 
well  for  himself  as  on  behalf  of  the  others  (of  whom  he  states 
that  he  is  the  duly  appointed  agent),  setting  forth  the  above 
facts,  and  prajdng  that  the  defendant  may  be  decreed  to  pay  to 
the  plaintiff  the  amount  of  dividends  received  by  the  defendant 
in  his  lifetime.  On  demurrer  to  the  bill,  held  :  The  freeholders 
and  housekeepers  acquired  no  property  in  the  proceeds  of  the 


136  Citations  to  the  Code  of  Virginia. 

glebe  land  by  the  disposition  thereof  made  as  aforesaid,  and 
this  suit  cannot  be  maintained. 

Section  1397. 

In  the  case  of  Overseers  of  the  Poor  of  Richmond  Cotmty  vs. 
Tayloe's  Adm'rs,  1  Va.  (Gilmer),  336,  decided  June  18,  1821,  it 
was  held :  A  charity  for  the  benefit  of  the  poor  of  a  parish  was 
given  in  trust  to  the  minister  and  vestry.  When  there  ceased 
to  be  either,  it  was  vested  in  the  overseers  of  the  poor  for  the 
parish  by  the  act  of  1805,  and  they  may  recover  the  charity  in 
equity. 

Section  1398. 

In  the  case  of  Brooke  vs.  Shacklett,  13  Grat.,  301,  decided 
May  23,  1856,  it  was  held  ;  The  act  relates  only  to  conveyances, 
devises,  and  dedications  of  property  for  the  use  of  religious  con- 
gregations in  the  local  and  limited  sense  of  the  term,  viz.,  for 
the  members  of  those  religious  congregations  who,  from  their 
residence  at  or  near  the  place  of  public  worship,  may  be  ex- 
pected to  use  it  for  such  purpose.  No  deed  which  does  not  re- 
spect the  rights  of  the  local  society  or  religious  congregation, 
and  no  deed  which  does  not  design  the  enjoyment  of  the  uses 
of  the  property  conveyed  by  the  local  religious  societ}^  or  con- 
gregation, can  be  placed  within  the  influence  of  the  statute. 

A  deed  conveying  property  interest  for  the  use  of  the  local 
society  is  not  without  the  operation  of  the  statute  by  reason  that 
it  sanctions  the  appointment  of  the  ministers,  and  authorizes 
them  to  use  the  house  for  preaching,  without  any  reference  to 
the  vote  or  wish  of  the  congregation,  it  being  a  Methodist 
church,  and  the  ministers  being  appointed  by  the  Conference, 
according  to  the  constitution  of  that  church. 

Deed  conveys  a  house  of  worship  in  trust  for  a  local  religious 
congregation,  and  provides  that  the  trustees  are  at  all  times  to 
permit  the  ministers  belonging  to  the  Methodist  Episcopal  Church, 
who  shall  be  duly  authorized  by  the  conferences  of  the  church, 
to  preach  in  the  house.  Upon  a  question  of  the  right  of  a  min- 
ister to  preach  in  the  house,  that  question  is  to  be  determined 
by  inquiring  not  whether  he  represents  the  wishes  of  a  majority 
of  the  members  of  the  society,  but  whether  he  has  been  ap- 
pointed and  assigned  to  the  society  in  accordance  with  the  laws 
of  the  church. 

The  General  Conference  of  the  Methodist  Episcopal  Church 
in  the  United  States  had  the  constitutional  power  to  adopt  the 
plan  for  the  separation  of  the  church  adopted  in  1844. 

A  society  of  the  church,  which,  according  to  the  plan  of  sep- 
aration, is  a  border  society,  having,  by  a  majority  of  its  members, 
resolved  to  adhere  to  the  Methodist  Episcopal  Church,  South, 
is  entitled  to  the  use  of  the  church  house  in  exclusion  of  those 


Citations  to  the  Code  of  Vieginia.  137 

Avho  repudiate  the  authority  of  said  church  and  refuse  to  receive 
the  pastors  appointed  by  it. 

In  the  case  of  Ilopkinson  et  als.  vs.  Pusey,  et  als.,  32  Grat., 
428,  decided  November,  1879,  it  was  held :  The  Baltimore  Con- 
ference of  the  Methodist  Episcopal  Church  having  in  its  meet- 
ing in  1845  declared  its  adherence  to  the  Methodist  Episcopal 
Church,  could  not  afterwards  in  1861  secede  from  that  church, 
so  as  to  entitle  it  to  the  benefit  of  the  plan  of  division  adopted 
in  the  General  Conference  of  the  church  in  1844,  though  in 
1866  it  united  with  the  Methodist  Episcopal  Church,  South. 

Except  as  tt)  the  border  circuits  of  the  church,  the  division  of 
the  churches  of  which  is  provided  by  the  plan  of  1844,  the 
property  in  the  churches,  etc.,  of  the  congregations  within  the 
bounds  of  the  Baltimore  Conference,  properly  belongs  to  the 
churches  in  connection  with  the  Baltimore  Conference  com- 
posed of  those  members  of  that  conference  who  refused  to  con- 
cur in  the  action  of  the  conference  in  1862,  and  continued  to 
adhere  to  the  Methodist  Church. 

The  Harmony  church,  in  Loudoun  county,  was  not  a  border 
church,  and  the  plan  of  division  in  1844  did  not  apply  to  it,  and 
though  a  majority  of  members  of  that  church  decided  to  go 
with  the  Baltimore  Conference,  South,  the  other  party  remain- 
ing in  connection  with  the  Baltimore  Conference  are  entitled  to 
the  possession  of  the  church  property. 

In  the  case  of  Boxwell  et  als.  vs.  Affleck  et  als.,  79  Va.,  402, 
decided  September  25, 1884.  In  1854,  N.  devised  after  C.'s  death 
a  house  and  lot  at  B.  to  the  trustees  of  the  Methodist  Episcopal 
Church  at  B.  for  the  use  of  said  church.  B.  was  in  the  limits 
of  the  Baltimore  Conference,  then  attached  to  the  Methodist 
Episcopal  Church,  but  afterwards  in  1866  attached  to  the  Metho- 
dist Episcopal  Church,  South.  In  1876  a  joint  commission,  ap- 
pointed by  the  general  conferences  of  the  two  churches,  awarded 
this  house  and  lot  to  the  Methodist  Episcopal  Church,  South. 
C,  the  life  tenant,  died  in  1881.  Upon  a  bill  by  the  trustees  of  the 
Methodist  Episcopal  Church,  South,  at  B.,  to  determine  the  title 
to  this  house  and  lot,  held :  Baltimore  Conference  by  its  said 
action  in  1866  did  not  become  entitled  to  the  benefit  of  the  plan  of 
division  adopted  in  the  General  Conference  of  the  church  in  1844. 

The  devise  was  to  a  particular  congregation  of  the  Methodist 
Episcopal  Church,  and  hence  was  valid.  It  was  not  to  that  church 
in  a  general  sense.     If  it  had  been,  it  would  have  been  invalid. 

The  General  Conference  of  the  Methodist  Episcopal  Church 
had  no  power,  directly  or  indirectly,  to  transfer  the  property  of 
the  said  congregation  of  the  Methodist  Episcopal  Church  at  B. 
to  the  Methodist  Episcopal  Church,  South.  Hence  the  joint 
commission  at  Cape  May  had  no  power  to  make  such  award. 

In  the  case  of  Protestant  Episcopal  Educational  Soc.  "VS.  Church- 


138  Citations  to  the  Code  of  Virginia. 

nnarCs  Reps.  80  Ya.,  718,  decided  September  25,  1885,  testator 
in  1880  bequeathed  money  to  be  invested  by  a  fiduciary,  giving 
ample  security  in  safe  interest-bearing  funds,  the  interest  only 
to  be  applied  to  the  use  of  his  legatee  during  her  life,  and  at 
her  death  "the  principal  and  any  unexpended  interest  to  be 
paid  to  the  trustees  of  the  Protestant  Episcopal  Educational 
Society  of  Virginia"  (incorporated  in  1875),  "said  bequest  to 
be  used  exclusively  for  educating  poor  young  men  for  the  Epis- 
copal ministry,  upon  the  basis  of  evangelical  principles  as  now 
established."  Held :  The  bequest  to  the  legatee  corporation  is 
not  null  and  void,  because  not  absolute  for  its  own  use  as  a  cor- 
porate body,  but  in  trust  to  be  exclusively  used  for  the  trusts 
therein  named,  and  because  those  trusts  are  religious  in  their 
character,  and  too  vague  and  indefinite  to  be  upheld  by  the  law 
of  this  State,  or  to  be  administered  by  a  court  of  chancery,  even 
if  merely  educational  as  contemplated  by  the  Code  1873,  Chapter 
77,  Section  2,  the  bequest  is  not  contrary  to  public  policy,  but 
is  valid  both  at  common  law  and  under  Code  1873,  Chapter  77, 
and  is  enforceable  by  the  chancery  courts  of  this  State. 

Section  1399. 
For  the  reference  to  32  Grat.,  428,  see  supra  Section  1398. 
In  the  case  of  ^yade  et  als  vs.  Hancock  dh  Agee,  76  Va.,  620. 

4.  Idem. — Statutory. — In  summary  proceedings  under  Code 
1873,  Chapter  76,  Section  9,  circuit  courts  have  jurisdiction  to 
appoint,  change,  and  remove  church  trustees ;  but  not  to  determine 
how  they  shall  administer  their  trust. 

5.  Idem. — Idem. — Appointment,  change,  and  removal  of 
trustees,  under  that  section,  must  be  "on  application  of  the 
proper  authorities  of  the  congregation,"  and  not  of  any  vol- 
unteer. 

Section  1400. 
In  the  case  of  Finley  et  als.  vs.  Brent  et  als.,  87  Va.,  103,  de- 
cided November  20,  1890,  it  was  held :  Act  of  February  18, 
1867  (Acts  1866-'67,  p.  649),  when  applied  to  property  thereto- 
fore granted  in  trust  for  a  particular  congregation,  alters  the 
terms  of  the  trust  and  impairs  the  obligation  of  the  contract, 
and  is  repugnant  both  to  the  Federal  and  State  Constitutions. 

Section  1405. 
In  the  case  of  Linn  et  als.  {Trustees)  vs.  Carson's  Administra- 
tor et  als.,  32  Grat.,  170,  decided  September,  1879,  it  was  held, 
p.  182 :  The  act,  Chapter  76,  Sections  12,  13,  Code  of  1873, 
does  not  prohibit  the  sale  of  church  property  for  the  payment 
of  debts  incurred  in  the  purchase  thereof,  or  to  reimburse  a 
party  who  has  advanced  money  or  made  himself  Hable  for  any 
such  debts  at  the  instance  of  the  trustees  of  the  chui'ch,  and  the 


Citations  to  the  Code  of  Virginia.  139 

discipline  of  tlie  clmrcli  authorizing  parties  so  advancing  money 
on  account  of  such  propeiiy  to  raise  said  sum  of  money  by 
mortgage  or  sale,  a  court  of  equity  will,  at  the  suit  of  a  party  so 
liable  or  so  advancing  money,  subject  the  lot  and  buildings  to 
sale  for  the  purpose  of  satisfying  the  claim. 

Section  1408. 
In  the  case  of  Linn  et  als.  {Trustees)  vs.  Carson  s  Adminis- 
trator et  als.,  32  Grat.,  170,  decided  September,  1879,  it  was 
held,  p.  182:  The  act.  Chapter  76,  Sections  12,  13,  Code  of 
1873,  does  not  prohibit  the  use  of  church  property  for  the  pay- 
ment of  debts  incurred  in  the  purchase  thereof,  or  to  reimburse 
a  party  who  has  advanced  money  or  made  himself  liable  for 
any  such  debts  at  the  instance  of  the  trustees  of  the  church ;  and 
the  discipline  of  the  church  authorizing  parties  so  advancing 
money  on  account  of  such  property  to  raise  said  sums  of  money 
by  mortgage  or  sale,  a  court  of  equity  will,  at  the  suit  of  a  party 
so  liable  or  so  advancing  money,  subject  the  lot  and  buildings  to 
sale  for  the  purpose  of  satisfying  such  claim. 


TITLE  XXII. 

CHAPTER  LXV. 

Section  1420. 

In  the  case  of  Protestant  Episcopal  Educational  Society  vs. 
Churchman's  Reps.,  80  Va.,  718,  decided  September  25,  1885. 
Testator  in  1880  bequeathed  money  to  be  invested  by  a  fiduciary, 
giving  ample  security  in  safe  interest-bearing  funds,  the  interest 
only  to  be  applied  to  the  use  of  his  legatee  during  her  Hfe,  and 
at  her  death  "  the  principal  and  any  unexpended  interest  to  be 
paid  to  the  trustees  of  the  Protestant  Episcopal  Educational 
Society  of  Virginia"  (incorporated  in  1875),  " said  bequest  to  be 
used  exclusively  for  educating  poor  young  men  for  the  Episco- 
pal ministry,  upon  the  basis  of  evangelical  principles  as  now 
established."  Held :  The  bequest  to  the  legatee  corporation  is 
not  null  and  void,  because  not  absolute  for  its  own  use  as  a  cor- 
porate body,  but  in  trust  to  be  exclusively  used  for  the  trusts 
therein  named,  and  because  those  trusts  are  religious  in  their 
character,  and  too  vague  and  indefinite  to  bo  upheld  by  the  law 
of  this  State,  or  to  be  administered  by  a  court  of  chancerj^  even 
if  merely  educational,  as  contemplated  by  Code  of  1873,  Chap- 
ter 77,  Section  2.  The  bequest  is  not  contrary  to  public  policy, 
and,  under  Code  of  1873,  Chapter  77,  is  enforceable  by  the 
chancery  courts  of  this  State. 


140  Citations  to  the  Code  of  Yieginia. 

CHAPTEK  LXVI. 
Section  1429. 

In  the  case  of  CMldrey  et  als.  vs.  Bady  et  als.,  11  Va.,  518, 
decided  May  11,  1883,  it  was  held :  Constitution,  Article  8,  Sec- 
tion 2,  constitutes  the  governor,  attorney-general,  and  superin- 
tendent of  pubhc  instruction,  a  board  of  education  for  the  State. 
Act  approved  11th  July,  1870  (Code,  1873,  Chapter  78,  Section 
7,  clause  4),  empowers  this  board  to  appoint  and  remove  dis- 
trict school  trustees,  until  otherwise  provided,  and  applies  as 
well  to  cities  and  towns  as  to  counties. 

In  the  case  of  Kilpatrick  et  als.  vs.  Smith  et  als.,  11  Va.,  347, 
decided  March  29, 1883,  it  was  held  :  Article  9,  Section  2,  of  the 
Constitution  provides  for  a  board  of  education,  composed  of  the 
governor,  superintendent  of  public  instruction,  and  attorney- 
general,  and  prescribes  its  duty;  and  section  directs  that  the 
General  Assembly  shall  make  all  needful  rules  and  regulations 
to  carry  into  effect  the  public  free  school  system  provided  for 
by  this  article. 

Acts  1869-70,  Chapter  259,  Section  2,  declares  that  the  public 
free  school  system  shall  be  administered  by  a  board  of  educa- 
tion, a  superintendent  of  public  instruction,  county  superin- 
tendent of  schools,  and  district  school  trustees ;  and  Section  7 
prescribes  the  duties  of  the  board  of  education ;  among  which 
is  that  of  appointing  and  removing  district  school  trustees,  until 
otherwise  provided. 

Section  1437. 

In  the  case  of  Pendleton  vs.  Miller,  82  Ya.,  390,  decided  Sep- 
tember 16,  1886,  it  was  held:  The  office  of  these  superinten- 
dents is  a  constitutional  office,  and  the  term  of  office  is  fixed 
by  the  State  Constitution  at  four  years. 

The  joint  resolution  approved  February  26,  1886,  is  repug- 
nant to  the  Constitution,  and  void.  This  is  the  case  cited  from 
10  Yirginia  Law  Journal,  606. 

In  the  case  of  Roller  vs.  Jordan,  10  Yirginia  Law  Journal, 
628,  decided  October  8,  1886 :  On  June  7,  1883,  Roller  was  ap- 
pointed superintendent  of  schools  for  Augusta  county,  and  held 
the  office  until  July  1,  1886,  when  Jordan,  who  was  appointed 
thereto  on  March  20,  1886,  took  possession  thereof,  upon  peti- 
tion for  mandamus  by  R.  to  recover  the  office.  Held :  Under 
the  repeated  decisions  of  this  court,  Roller  was  appointed  to 
fill  the  unexpired  term  ending  June  30,  1885,  and  since  that 
time  has  been  a  mere  locum  tenens,  holding  by  virtue  of  the 
constitutional  provision  which  allowed  him  to  hold  until  his 
successor  was  appointed  and  qualified. 

Jordan  is  entitled  to  hold  the  unexpired  portion  of  the  term, 
which  began  July  1st  and  will  end  June  30,  1889;  his  appoint- 


Citations  to  the  Code  of  Yirginia.  141 

ment  is  valid  (the  board  of  education  liaving  authority  to  fill 
vacancies),  notwithstanding  the  appointment  was  made  under 
the  joint  resolution  of  February  26,  1886,  which  was  held  to 
be  null  and  void  in  Pendleton  vs.  MilleT,  11  Virginia  Law  Jour- 
nal, 606. 

Section  1441. 
In  the  case  of  Stewart  &  Palmer  vs.  Thornton  et  als.,  75  Ya., 
215,  decided  January  20,  1881,  it  was  held  :  The  county  school 
boards  are,  by  act  of  assembly,  constituted  a  corporation,  and  a 
suit  to  recover  a  fund  belonging  to  the  corporation  must  be 
brought  in  its  corporate  name.  A  suit  by  persons  styling 
themselves  the  directors  of  the  county  school  board  of  their 
county  cannot  be  maintained. 

Section  1453. 
In  the  case  of  Owens  vs.  O' Brien  et  als.,  78  Ya.,  116,  decided 
December  6,  1883,  it  was  held :  Such  trustees  are  required  to 
take  and  subscribe  the  oath  of  office  as  a  condition  precedent  to 
entering  on  the  discharge  of  their  official  duties,  and  their  fail- 
ure to  take  it  within  the  prescribed  time,  vacates  their  trustee- 
ship. If  the  city  council  fails  to  act  within  the  time  prescribed, 
it  becomes  the  duty  of  the  board  of  education  to  appoint,  and 
such  appointees  constitute  the  lawful  trustees  of  the  city. 

Section  1455. 

In  the  case  of  Kilpatrick  et  als.  vs.  Stnithet  als.,  77  Ya.,  347, 
decided  March  29,  1883,  it  was  held  :  Article  9,  Section  2,  of  the 
Constitution  provides  for  a  board  of  education,  composed  of  the 
governor,  superintendent  of  public  instruction,  and  attorney - 
general,  and  prescribes  its  duty,  and  this  section  directs  that 
the  General  Assembly  shall  make  all  needful  rules  and  regula- 
tions to  carry  into  effect  the  public  free  school  system  provided 
for  by  this  article. 

Acts  1869-70,  Chapter  259,  Section  2,  declares  that  the  pub- 
lic free  school  system  shall  be  administered  by  a  board  of  edu- 
cation, a  superintendent  of  public  instruction,  county  superin- 
tendent of  schools,  and  district  school  trustees ;  and  Section  7 
prescribes  the  duty  of  the  board  of  education,  among  which  is 
that  of  appointing  and  removing  district  school  trustees  until 
otherwise  provided. 

In  the  case  of  Childrey  et  als.  vs.  Rady  et  als.,  11  Ya.,  518, 
decided  May  11,  1883,  it  was  held :  School  trustees  are  officers, 
and  as  such  are  embraced  by  the  Constitution.  Article  8,  Sec- 
tion 6,  declaring  that  "  all  persons,  before  entering  upon  the 
discharge  of  any  functions  as  officers  of  this  State,  must  take 
and  subscribe  the  following  oath  or  affirmation."  This  oath  is 
a  condition  precedent  to  the  discharge  of  official  duties  as  school 
trustees,  and  failure  to  take  this  oath  causes  a  vacancy,  which. 


142  Citations  to  the  Code  of  Virginia. 

unless  filled  by  the  city  council  within  the  prescribed  period, 
must  be  filled  by  the  board  of  education. 

The  case  of  Childrey  et  als.  vs.  Bady  et  als.,  here  referred  to, 
construes  a  statute  now  repealed. 

CHAPTEK  LXVIL 

Section  1523. 
The  case  of  McLeer  et  als.  vs.  Caldwell  et  als.,  11  Ya.,  596, 
does  not  construe  this  section,  but  is  ruled  by  it. 

Section  1528. 

In  the  case  of  Childrey  et  als.  vs.  Rady  et  als.,  11  Va,,  518, 
decided  May  11,  1883,  it  was  held  :  School  trustees  are  officers, 
and  as  such  are  embraced  by  the  Constitution.  Article  8,  Sec- 
tion 6,  declaring  that  "  all  persons,  before  entering  upon  the 
discharge  of  any  functions  as  officers  of  this  State,  must  take 
and  subscribe  the  following  oath  or  affirmation."  This  oath  is  a 
condition  precedent  to  the  discharge  of  official  duties  as  school 
trustees,  and  failure  to  take  this  oath  causes  a  vacancy,  which, 
unless  filled  by  the  city  council  within  the  prescribed  period, 
must  be  filled  by  the  board  of  education. 

In  the  case  of  Kilpatrick  et  als.  vs.  SinitJi  et  als.,  11  Va.,  347, 
decided  March  29,  1883,  it  was  held :  Acts  1870-71,  Chapter 
308,  Section  3,  makes  each  city  ward  a  school  district.  Section 
7  provides  that  all  vacancies  may  be  supplied  at  any  time  within 
sixty  days  after  occurrence  by  the  city  council,  which  shall  di- 
vide the  trustees  into  three  classes,  to  hold  office  one,  two,  and 
three  years  respectively,  and  enacts  that,  "  should  the  city  coun- 
cil in  any  case  fail  to  act  within  the  time  prescribed,  it  shall  be 
the  duty  of  the  board  of  education  to  fill  the  vacancy  or  vacan- 
cies without  further  delay." 

CHAPTER    LXVIIL 
CHAPTER   LXIX. 

Section  1563. 
In  the  case  of  Frazier  vs.  Military  Institute,  81  Va.,  59,  de- 
cided October  8,  1885,  it  was  held :  The  corporate  name  of  the 
institute  at  Lexington  is,  "  The  Virginia  Military  Institute." 

CHAPTER   LXX. 

CHAPTER  LXXL 

CHAPTER  LXXII. 

CHAPTER  LXXIII. 

Section  1651. 

In  the  case  of  Lewis  et  als.  vs.   Whittle  et  als.,  11  Va.,  415, 


Citations  to  the  Code  of  Virginia.  143 

decided  April  19, 1883.  In  1854  the  Medical  College  of  Virginia 
was  incorporated  ^sdtll  a  board  of  nineteen  visitors,  named  in 
the  charter,  and  required  to  make  annual  reports  to  the  second 
auditor.  Power  was  reserved  by  the  legislature  to  modify, 
alter,  or  repeal  the  charter  at  pleasure.  An  appropriation  of 
$30,000  was  made  to  the  college  in  1860,  in  consideration  that 
it  convey  all  its  property  to  the  literary  fund.  The  conveyance 
was  made.  In  1866  an  appropriation  of  $1,500  was  made,  and 
a  like  sum  has  been  annually  appropriated  since  then.  The 
charter  empowers  the  governor  to  fill  any  vacancy  which  may 
occur  in  the  board  by  reason  of  death,  resignation,  or  other- 
wise. In  1882  the  governor  removed  the  entire  board  of  visi- 
tors and  appointed  a  new  board.  The  former  refused  to  sur- 
render, and  on  the  petition  of  the  latter  for  a  writ  of  mandamus^ 
held: 

1.  The  college  is  a  public  corporation. 

2.  The  visitorial  authority  is  in  the  State. 

3.  The  power  of  removing  and  appointing  the  visitors  is  re- 
served in  the  charter  to  the  legislature,  and  has  not  been  granted 
to  the  governor. 

4.  To  him  has  been  given  only  the  power  to  fill  vacancies 
which  may  occur  by  reason  of  death,  resignation,  or  otherwise, 
but  not  to  remove,  and  so  create  a  vacancy  in  order  to  fill  it. 

5.  There  is  no  such  thing  in  this  State  as  a  visitor  holding,  as 
in  England,  by  life-tenure. 

CHAPTEK  LXXIV. 


TITLE  XXIII. 
CHAPTEK  LXXV. 

Section  1669. 

In  the  case  of  Miller  vs.  Rutledge  et  als.,  82  Va.,863,  decided 
February  10,  1887,  it  was  held :  The  legal  presumption  is  that 
all  men  are  sane.  The  burden  of  proof  is  on  the  alleger  of  in- 
sanity. Legal  competency  to  act  is  the  possession  of  mental 
capacity  sufiicient  to  transact  one's  business  with  intelligence 
and  understanding  of  what  he  is  doing.  Mere  weakness  of 
understanding  is  no  objection  to  a  man's  disposing  of  his  own 
property.  The  test  of  legal  capacity  is  said  to  be  that  the  party 
is  capable  of  recollecting  the  property  he  is  about  to  dispose  of, 
the  manner  of  distributing  it,  and  the  objects  of  his  bounty;  the 
particular  act  being  attended  with  the  consent  of  his  will  and 
understanding. 

In  the  case  of  Porter  etals.  vs.  Porter  et  als.,  89  Va.,  118,  de- 
cided June  16, 1892,  it  was  held :  The  legal  presumption  is  that 


144  Citations  to  the  Code  of  Virginia. 

all  men  are  sane,  and  the  burden  of  proof  is  on  him  who  alleges 
unsoundness  of  mind  in  an  individual.  Miller  vs.  Rutledge,  82 
Va.,  867,  "  Mere  weakness  of  the  understanding  is  no  objection 
to  a  man's  disposing  of  his  own  estate."  Beverly  vs.  Walden, 
20  Grat.,  147,  "  The  testimony  of  witnesses  present  at  i\ie  factum 
is  more  to  be  relied  on  than  .the  witnesses  based  upon  facts 
which  may  be  true,  and  yet  not  be  the  result  of  unsoundness  of 
mind." 

Section  1688. 

In  the  case  of  Statham  vs.  Blackford  (Superintendent)  et  als., 
89  Va.,  771,  decided  March  22,  1893,  where  a  lunatic,  who  has 
been  confined  in  an  asylum,  is  released  temporarily  for  her  im- 
provement, and  after  such  release  completely  recovers,  man- 
damus will  He  against  the  superintendent  of  such  asylum  to 
grant  her  a  certificate  of  discharge  without  her  return  to  the 
asylum  for  examination. 

Where  the  superintendent  claims  the  right  to  retake  the 
lunatic,  and  it  is  at  the  home  of  herself  and  all  the  parties  that 
the  apprehended  act  wiU  be  done,  held:  That  mandamus 
proceedings  for  her  discharge  are  properly  commenced  in  the 
court  at  the  place  of  her  home. 

Section  1697. 
In  the  case  of  Harrison  vs.  Garnett,  86  Va.,  763,  decided 
April  3,  1890,  it  was  held :  A  circuit  court  has  no  jurisdiction  to 
adjudge  a  person  insane.  When  once  a  person  has  been  ad- 
judged by  a  county  or  corporation  court,  or  the  justices  before 
whom  he  is  examined,  the  circuit  court  has  concurrent  jurisdic- 
tion with  such  court  to  appoint  a  committee  for  the  lunatic. 

Section  1698. 

See  the  case  of  Harrison  vs.  Oarnett,  86  Va.,  763,  cited  suvra 
Section  1697.  >        '  ./- 

Section  1700. 
In  the  case  of  Harrison  vs.  Garnett,  86  Va.,  763,  decided 
April  3,  1890,  it  was  held :  A  circuit  court  has  no  jurisdiction  to 
adjudge  a  person  insane.  When  once  a  person  has  been  ad- 
judged by  a  county  or  corporation  court,  or  the  justice  before 
whom  he  is  examined,  the  circuit  court  has  concurrent  jurisdic- 
tion with  such  court  to  appoint  a  committee  for  the  lunatic. 

Section  1701. 
In  the  ^^\oi  -BolUng  vs.  Turner,  6  Rand.,  584,  decided 
December  13,  1828,  it  was  held:  A  committee  of  a  lunatic,  ap- 
pointed l:.y  the  chancellor,  is  a  mere  commissioner  of  the  court, 
managing  the  personal  estate  of  the  lunatic  under  the  direction 
of  the  chancellor,  and  is  responsible  to  the  court  as  a  receiver, 


Citations  to  the  Code  of  Virginia.  146 

removable  in  its  discretion,  and  not  liable  to  be  sued  at  law  on 
claims  either  against  the  lunatic  himself  or  his  estate,  as  in  the 
case  of  a  committee  appointed  under  the  statute. 

Section  1702. 

In  the  case  of  BirdJs  Committee  vs.  Bird^  21  Grat.,  712,  de- 
cided January,  1872,  it  was  held:  Where  there  is  a  committee 
of  a  lunatic,  every  suit  respecting  the  person  or  the  estate  of  the 
lunatic  must  be  in  the  name  of  the  committee. 

But  where  no  committee  of  a  lunatic  has  been  appointed,  or 
where  the  committee  appointed  has  been  removed  for  an  account, 
and  he  objects  to  the  parties,  the  court  may  make  an  order  for 
the  cause  to  proceed  in  the  name  of  the  lunatic  by  some  fit  per- 
son as  her  next  friend,  if  the  one  mentioned  in  the  bill  is  not 
such  an  one ;  or  the  court  may  direct  the  appointment  of  a  com- 
mittee, and  the  amendment  of  the  bill  by  making  such  commit- 
tee a  co-plaintiif  or  defendant  in  the  suit. 

In  such  a  case,  if  the  defendant  does  not  make  such  an  objec- 
tion in  the  court  below,  and  there  is  an  account  and  decree 
against  them,  the  appellate  court  will  consider  that  he  has 
waived  the  objection,  and  will  not  reverse  the  decree  on  that 
account. 

In  1836,  the  committee  of  a  lunatic  receives  her  estate,  which 
consists  principally  of  money,  and  he  does  not  invest  it,  but  re- 
tains it  in  his  own  hands.  During  the  war  he  pays  her  expenses 
in  Confederate  money.  These  payments  are  to  be  scaled  as  of 
the  date  of  payment. 

Where  a  committee  of  a  lunatic  is  charged  in  his  account  with 
the  annual  interest  on  the  money  of  the  lunatic  in  his  hands,  he 
is  entitled  to  his  commission  upon  such  interest. 

Whatever  may  be  the  correct  general  rule  under  the  cir- 
cumstances of  the  case,  interest  should  be  charged  upon  in- 
terest. 

In  the  case  of  Cole's  Committee  vs.  Cole's  Administrator,  28 
Grat.,  365,  decided  March,  1877,  W.,  committee  of  a  lunatic,  C, 
settled  his  account  in  1858,  which  showed  him  indebted  to  C.  in 
ri  the  sum  of  $1,761.72.  In  1863  W.  again  settled  his  account, 
■  ,  showing  a  balance  against  him  of  $1,394.71,  as  of  the  1st  of 
B  November,  1863,  the  only  charges  against  him  in  this  account 
^L  being  the  balance  of  the  previous  account.  In  March,  1864, 
^H  upon  the  petition  of  W.,  the  judge  of  the  circuit  court  made  an 
^H  order  authorizing  him  to  invest  the  amount  of  one  thousand 
^H  dollars  in  Confederate  or  State  bonds,  and  in  the  same  month 
^B  W.  deposited  this  sum  with  the  treasurer  of  the  Confederate 
^H  States,  and  received  a  certificate  showing  he  was  entitled  to  re- 
^H|  ceive  a  4  per  cent,  bond  of  the  Confederate  States ;  but  it  does 

I 


146  Citations  to  the  Code  of  Vieginia. 

not  appear  that  the  bond  was  ever  issued.  Held :  The  money  in 
the  hands  of  W.  having  been  received  in  good  money,  the  order 
of  the  judge  was  not  aiithorized  by  the  statute,  and  W.  must 
account  for  it  in  good  money. 

The  commissioner,  in  setthng  the  account  of  W.,  makes  two 
statements,  the  only  difference  in  them  being  that  in  one  he 
gives  W.  credit  for  the  one  thousand  dollar  Confederate  bond, 
and  in  the  other  he  omits  it ;  and  he  refers  the  question  of  W.'s 
rights  to  the  credit  of  the  court.  The  court  adopts  the  statement, 
giving  him  the  credit,  and  decrees  accordingly.  On  appeal, 
held :  An  exception  to  the  report  was  not  necessary,  and  the 
appellate  court  may  direct  the  decree. 

The  accounts  settled  in  1858  and  1863  speak  of  W.  as  trustee 
of  C,  but  in  the  account  by  the  commissioner  he  is  treated  as 
committee  of  C.  There  having  been  no  exception  to  the  report 
for  bringing  into  the  latter  account  the  charges  in  the  first  two, 
W.'s  administrator  cannot  object  to  the  report  on  this  ground  in 
the  appellate  court,  he  not  having  excepted  in  the  circuit  court. 

A  bill  says  :  "  Your  complainant,  C,  who,  being  a  person  of 
unsound  mind,  sues  by  his  next  friend  and  committee.  A."  It 
will  be  considered  and  treated  as  a  suit  by  the  committee. 

In  the  case  of  Creigler's  Coinrnittee  vs.  Alexander's  Executor, 
33  Grat.,  674,  decided  September,  1880,  it  was  held :  As  a  gen- 
eral rule,  a  committee  of  a  lunatic  is  only  to  be  charged  simple 
interest  upon  the  balances  found  against  him  on  a  settlement  of 
his  account. 

A  committee  of  a  lunatic,  who  qualified  as  such  in  1838,  and 
continued  to  act  until  his  death,  in  1875,  and  did  not  settle  his 
accounts,  is  not  entitled  to  commissions  on  his  receipts  from 
1838  to  1859,  and  the  statute  of  March  3,  1867  (Code  of  1873, 
Chapter  128,  Section  9),  is  not  retrospective  in  its  operation,  and 
therefore  the  court  has  no  authority  to  allow  said  commissions 
under  that  act. 

In  the  case  of  Hauser  {Guardian  ad  litem,  <&c.)  vs.  King  et  als., 
76  Ya.,  731.     (P.  736.) 

Idem. — Voluntary  Release — Case  at  Bar. — Insolvent  commit- 
tee of  lunatic  sister  made  a  trust  deed  to  secure,  first,  D.  and 
A.,  his  sureties  in  his  bond  as  committee,  and  J.,  his  surety,  in 
debt  to  C.  ;  afterwards  other  debts.  Lunatic  was  supported  by 
committee,  who  received  her  estate,  but  charged  her  no  board. 
Reasonable  charge  for  board  would  absorb  her  estate  and  leave 
no  liability  on  the  sureties  on  his  bond.  J.  died  insolvent  with- 
out paying  anything  on  the  debt  for  which  he  was  surety.  On 
bill  to  distribute  the  trust  funds,  held :  Committee  was  entitled, 
under  Code  of  1873,  Chapter  82,  Section  48,  to  apply  lunatic's 
personahty  to  her  support  so  far  as  necessary;  and  having 
maintained  her  out  of  his  own  means,  has  a  claim  against  her 


Citations  to  the  Code  of  Yieginia.  147 

own  estate  for  bis  reimbursement,  wbicb  claim  be  bas  no 
xigbt  to  release,  and  tlius  put  a  burden  on  tbe  sureties  on  bis 
bond. 

In  tbe  case  of  Panniirs  Achn'r  vs.  Calloway's  Committee  et 
als.,  78  Va.,  387,  decided  January  31,  1884,  it  was  beld  :  In 
1847,  J.  was  appointed  committee  for  G.,  a  lunatic,  by  an  order 
of  tbe  circuit  court  of  H.  count3^  In  1853,  P.  was,  by  an  order 
of  tbe  county  court  of  said  county,  appointed  committee  of  said 
lunatic,  so  far  only  as  bis  interest  in  a  certain  estate  was  con- 
cerned, and,  witb  two  sureties,  executed  bond ;  and  tbis  order 
was  never  reversed,  and  under  it  P.,  as  sucb  committee,  pos- 
sessed bimself  of  tbe  lunatic's  estate.  Held  :  In  1853  tbe 
county  court  was  a  court  of  general  jurisdiction,  and  invested  by 
law  with  special  jurisdiction  over  tbe  persons  and  estates  of 
lunatics.  Neitber  tbe  committee  nor  bis  sureties  can  in  anotber 
proceeding  object  tbat  tbe  order  was  void.  It  migbt  be  different 
if  tbe  lunatic  objected  to  tbe  legality  of  tbe  appointment  of  tbe 
committee.  Whatever  estate  of  tbe  lunatic  tbe  committee  re- 
ceived by  virtue  and  under  color  of  bis  appointment  be  is  liable 
for.  If  one  assume  to  act  as  a  trustee  in  relation  to  trust  pro- 
perty without  just  authority,  be  shall  be  held  liable  as  if  he  had 
been  lawfully  appointed.  J.,  the  committee  of  G.,  who  bad 
been  appointed  by  tbe  circuit  court,  was  largely  indebted,  and 
procured  judgment  and  execution  to  be  obtained  against  him  by 
J.  through  H.,  bis  next  friend,  and  on  the  execution  slaves  and 
other  personal  property  were  received  witb  the  approval  of  H. 
by  P.,  who  bad  been  appointed  committee  of  J.  as  to  a  certain 
estate  only  by  the  county  court,  which  slaves,  etc.,  were  not  con- 
verted to  P.'s  own  use,  but  were  lost  by  the  results  of  the  late 
war.  Held :  Under  the  circumstances  of  this  case  P.  and  his 
sureties  cannot  be  beld  liable  for  said  slaves,  etc.  So  far  as 
any  of  tbe  property  received  by  P.  on  tbe  execution  was 
converted  to  his  own  use,  be  and  bis  sureties  are  liable.  Tbe 
estate  of  the  committee  should  be  first  exhausted  before  tbat 
of  his  sureties  is  touched  for  money  for  which  he  is  officially 
liable. 

In  tbe  case  of  Paxton  vs.  Stuart  et  ah.,  80  Va.,  873,  decided 
October  8,  1885,  it  was  beld :  Pending  a  suit  against  a  lunatic 
represented  by  bis  committee,  tbe  lunatic  dies,  tbe  committee 
ipso  facto  becomes  functus  officio  and  the  suit  abates,  and  must 
be  revived  and  proceed  in  tbe  same  name  of  tbe  lunatic's  per- 
sonal representative  and  heirs,  and  all  the  proceedings  bad  after 
lunatic's  death  and  before  sucb  revival,  are  void. 

Section  1703. 

See  the  case  of  Paxton  vs.  Stuart  et  als.,  80  Va.,  873,  cited 
supra,  Section  1702. 


148  Citations  to  the  Code  of  Virginia. 

TITLE  XXIV. 

CHAPTEE  LXXVL 

Section  1719. 
In  the  case  of  The  City  of  Richmond  vs.  Supervisors  of 
Henrico,  83  Va.,  204,  decided  April  21,  1887,  it  was  held:  A 
municipal  government  "  establishes "  a  hospital  by  purchasing, 
according  to  the  then  existing  law,  a  farm  and  the  buildings  on 
it  specially  for  that  purpose.  This  is  the  case  cited  from  11 
Virginia  Law  Journal,  651. 

Section  1721. 
In  the  case  of  The  City  of  Richmond  vs.  Long's  Adminis- 
trator, 17  Grat.,  375,  decided  April  18,  1867,  it  was  held:  The 
city  of  Eichmond  is  not  responsible  for  the  loss  of  a  slave  ad- 
mitted to  the  city  hospital,  on  the  grounds  of  the  negligence  of 
its  agents  at  the  hospital. 

CHAPTEE  LXXVII. 

CHAPTEE  LXXVIIL 

CHAPTEE  LXXIX. 

CHAPTEE  LXXX. 


TITLE  XXV. 

CHAPTEE  LXXXI. 

Section  1788. 

In  the  case  of  Atlantic  c&  Yirginia  Fertilizing  Company  vs. 
Kishpaxigh,  32  Grat.,  578,  decided  December,  1879,  it  was  held : 
The  acts  in  relation  to  the  inspection,  labelling,  etc.,  of  fertilizers, 
are  not  in  conflict  with  this  section  and  are  in  force  in  this 
State. 

In  the  case  of  Niemeyer  et  als.  vs.  }¥right,'lQ  Va.,  239,  de- 
cided January  27,  1881,  it  was  held :  A  statute  containing  a 
prohibition  and  a  penalty  makes  the  acts  which  it  punishes  un- 
lawful ;  and  the  same  may  be  implied  from  a  penalty  without  a 
prohibition.  But  it  does  not  follow  that  the  unlawfulness  of 
the  act  was  meant  by  the  legislature  to  avoid  a  contract  m^de 
in  contravention  of  it.  When  the  statute  is  silent,  and  contains 
nothing  from  which  the.  contrary  can  be  properly  infen-ed,  a 
contract  in  contravention  of  it  is  void.  Conceding  the  general 
rule  to  be  as  above  stated,  the  mere  imposition  of  a  penalty  by 
a  statute  for  doing  or  omitting  to  do  an  act,  does  not  of  itself  in 


Citations  to  the  Code  of  Virginia.  149 

every  case  necessarily  imply  an  intention  by  the  legislature 
that  every  such  contract  in  contravention  of  the  statute  shall 
be  void  in  the  sense  that  it  is  not  to  be  enforced  in  a  court  of 
justice.  The  acts  of  March  29,  1871  (Code  of  1873,  Chapter 
227),  and  of  March  29,  1877  (Acts  of  1876-77,  Chapter  249), 
which  requires  under  heavy  penalties  certain  things  to  be  done 
by  persons  selling  commercial  manures,  does  not  avoid  the  con- 
tract for  such  sale ;  and  a  party  selling  the  said  manures  may 
recover  upon  such  contracts  in  an  action  at  law,  though  he  has 
not  complied  with  the  directions  of  the  statutes. 

Section  1789. 
In  the  case  of  Blanton  {Commissioner)  vs.  Southern  Fertilizer 
Company  et  als.,  11  Va.,  335,  decided  March  29,  1883,  it  was 
held:  Chapter  249,  Acts  1876-77,  establishing  the  department 
of  agriculture,  and  empowering  the  commissioner  of  agriculture 
to  make  all  necessary  rules  and  regulations  for  carrying  out  the 
intentions  of  the  act,  does  not  authorize  him  to  levy  a  tax  upon 
manufacturers  and  sellers  of  fertilizers  for  the  purpose  of  rais- 
ing money  for  the  use  of  the  department,  in  the  shape  of  the 
charge  on  tags,  as  required  by  rule  number  two,  or  of  any 
charges  on  such  tags.  But  the  commissioner  has  power  to  en- 
force the  use  of  a  tag  to  be  attached  to  each  package  of  fertilizer, 
showing  that  the  same  is  registered  in  the  department,  without 
any  charge  therefor.     Hence  the  statute  changing  the  law. 

CHAPTEE  LXXXII. 

CHAPTEK  LXXXIII. 

Section  1797. 

In  the  case  of  Glass  vs.  Davis  et  als.,  23  Grat.,  184,  decided 
March,  1873,  it  was  held :  Under  the  first  proviso  to  the  second 
section  of  the  act  of  April  29,  1867,  in  relation  to  inspection  of 
tobacco  (Session  Acts,  1866-'67,  p.  967),  the  owners  of  a  public 
warehouse  may  close  it  as  such,  at  any  time,  in  the  mode  there- 
in prescribed.  And  thereupon  the  authority  of  the  inspector, 
ceases,  and  their  lease  of  the  warehouse  terminates. 

The  owners  of  a  public  warehouse  may  close  it  on  a  certain 
day  and  open  it  on  the  same  day  as  a  private  warehouse,  where 
everything  is  to  be  done  as  in  pubUc  warehouses,  except  the  in- 
spection of  tobacco. 

Section  1816. 

In  the  case  of   Thweat  db  Ilinton  vs.  Finch,  1  Washington, 

217,  decided  at  the  fall  term,  1793,  the  court  held:  Inspectors 

are  liable  to  the  owner  for  tobacco  delivered  to  them,  though 

removed   by  a  stranger  on  a  forged  order.      The  declaration 


150  Citations  to  the  Code  of  Yirginia. 

need  not  show  that  the  inspectors  were  public  inspectors,  and 
the  warehouse  to  be  established  by  law. 

In  the  case  of  Commonwealth  vs.  Colquhouns,  2  H.  &  M.,  213, 
decided  April,  1808,  it  was  held:  The  Commonwealth  cannot 
be  compelled  to  make  good  the  loss  of  tobacco  received,  in- 
spected, and  passed  at  a  public  warehouse,  but  not  delivered 
by  the  inspectors  on  application  to  the  persons  holding  the 
notes;  notwithstanding  the  same  was  unlawfully  converted  to 
their  own  use  by  the  inspectors,  or  is  otherwise  missing  and 
unaccounted  for,  and  the  inspectors  are  insolvent. 

In  the  case  of  Page  {Governor)  vs.  Peyton,  2  H.  &  M.,  566, 
decided  May  25,  1808,  it  was  held:  An  action  may  be  main- 
tained on  the  inspector's  bond,  in  the  name  of  the  governor,  for 
the  benefit  of  a  person  injured  by  the  non-delivery  of  tobacco, 
although  the  law  directs  the  original  bond  to  be  transmitted  to 
the  treasurer,  and  is  silent  as  to  the  prosecution  of  suits  thereon ; 
the  person  injured  in  such  case  having  his  option  either  to  bring 
such  suit  or  an  action  in  his  own  name  against  the  inspectors 
for  the  penalty  (imposed  by  the  law)  of  double  the  value  of  the 
tobacco. 

In  the  case  of  Thweatts  Administrator  vs.  Jones'  Administra- 
tor, i&c,  1  Kand.,  328,  decided  March,  1823,  it  was  held:  In 
equity,  contribution  may  be  claimed  by  one  inspector  of  to- 
bacco against  his  co-inspector  for  the  amount  of  a  judgment 
had  against  the  former,  for  faiUng  to  deliver  the  tobacco  when 
legally  demanded,  which  judgment  he  has  discharged  when  the 
failure  does  not  proceed  ex  m.aleficio,  or  from  some  actual  fraud 
or  voluntary  wrong.  But  it  is  incumbent  on  the  party  asking 
relief  to  show  that  he  is  innocent  of  such  imputations. 

CHAPTEK  LXXXIV. 

Section  1864. 

In  the  case  of  Delaplane  vs.  Crenshavj  (&  Fisher,  Same  vs. 
Haxall,  Crenshaw  &  Co.,  15  Grat.,  457,  decided  January,  1860, 
it  was  held :  The  inspector  of  flour  is  bound  to  inspect  it  by 
•boring  through  the  head  of  the  barrel  with  an  auger  not  exceed- 
ing a  half  inch  in  diameter. 

An  inspector  of  flour  refusing  to  inspect  flour  by  boring 
through  the  head  of  the  barrel  with  a  half-inch  auger  will  be 
compelled  to  do  it  by  mandamus  from  the  court. 

Section  1878. 
In  the  case  of  Delaplane  vs.  Crenshaw  (&  Fisher,  Same  vs. 
Haxall,  Cren^^haio  c&  Co.,  15  Grat.,  457,  it  was  held:  If  there 
could  be  in  Virginia  a  legal  valid  usage  or  custom,  the  effect  of 
which  is  to  operate  per  se  as  an  exception  to  the  general  rule  of 
the  common  law,  a  usage  or  custom  for  the  inspector  of  flour, 


Citations  to  the  Code  of  Virginia.  151 

who  by  the  statute  is  to  receive  a  specified  money  compensa- 
tion, and  to  take  to  his  own  use  the  flour  drawn  from  the  barrel 
in  the  process  of  inspection,  called  a  draft  flour,  as  an  additional 
compensation  or  perquisite,  would  be  bad,  as  being  unreasonable, 
unjust,  and  contrary  to  the  policy  of  the  law. 

Although  a  custom  when  otherwise  good  may  override  and 
displace  the  common  law  rule,  yet  a  statute  introducing  a  new 
principle,  with  a  negative  either  express  or  necessarily  implied, 
must  be  strictly  pursued,  and  no  custom  can  be  set  up  against  it. 

A  custom  for  the  inspector  of  flour  to  take  the  draft  flour, 
may  have  existed  longer  than  the  memory  of  any  living  man, 
yet,  as  the  statute  shows  the  commencement  of  the  inspection  of 
flour  in  Virginia,  and  as  this  period  is  within  the  limitation 
prescribed  for  the  commencement  of  a  custom,  the  custom  is 
bad. 

The  doctrine  of  presumptions  cannot  be  applied  to  this  cus- 
tom, because  (1),  The  presumption  is  repelled  by  the  evidence ; 
and  (2),  Because  the  doctrine  of  presumption  can  only  apply  to 
things  in  grant,  and  where  there  is  a  party  by  whom  the  grant 
could  be  made  as  well  as  one  to  receive  it. 

There  is  no  customary  law  in  Virginia  which  per  se  can  vest  a 
party  claiming  under  it. 

If  a  custom  had  been  organized  by  a  statute,  either  expressly 
or  by  necessary  implication,  it  will  thereby  receive  vitality,  and 
the  right  claimed  under  it  may  be  asserted  as  conferred  by  the 
statute. 

The  act,  Code,  chapter  88,  p.  413,  does  not  recognize,  either  ex- 
pressly or  by  implication,  the  right  of  the  inspector  to  take  the 
draft  flour,  or  to  use  an  auger  or  trier  more  than  half  an  inch  in 
diameter. 

The  act  having  directed  that  an  auger  of  not  more  than  a  half 
of  an  inch  in  diameter  shall  be  used  in  inspecting  flour,  a  cus- 
tom to  use  a  larger  auger  is  bad,  though  the  inspector  says  he 
cannot  execute  his  duty  satisfactorily  with  an  auger  of  the  size 
prescribed  by  the  statute. 

The  inspector  of  flour  is  bound  to  inspect  it  by  boring  through 
the  head  of  the  barrel  with  an  auger  not  exceeding  half  an 
inch  in  diameter. 

An  inspector  of  flour  refusing  to  inspect  flour  by  boring 
through  the  head  of  the  barrel  with  a  half-inch  auger,  he  will 
be  compelled  to  do  it  by  mandamus  from  the  court. 

The  evidence  of  a  member  of  the  legislature  is  inadmissible 
to  prove  the  knowledge  of  the  members  as  to  the  existence  of 
the  custom  of  the  inspector  to  take  the  draft  flour,  when  the 
statute  was  enacted  by  them  for  the  purpose  of  ascertaining  the 
true  meaning  of  the  statute. 

In  a  civil  suit  (whatever  may  be  the  law  in  a  criminal  case), 


152  Citations  to  the  Code  of  Virginia. 

after  the  judge  presiding  at  the  trial  has  given  an  instruction  to 
the  jury  the  counsel  should  not  be  allowed  to  discuss  be- 
fore the  jury  the  same  matter  which  the  court  has  already  de- 
cided. 

Section  1891. 

In  the  case  of  Atlantic  (&  Virginia  Fertilize)'  Company  vs. 
Kishpaugh,  32  Grat.,  578,  decided  November,  1879,  Section  48 
of  Chapter  86  of  the  Code  of  1873,  and  those  sections  follow- 
ing in  relation  to  the  inspection,  labelling,  etc.,  of  fertilizers,  are 
not  in  conflict  with  the  provisions  of  the  act  approved  March 
29,  1877,  entitled,  "an  act  to  establish  a  department  of  agri- 
culture, mining  and  manufacturing  for  the  State"  (Acts  1876-'77, 
p.  240) ;  are  not  repealed  by  the  last  named  act ;  and  are  in 
force  in  this  State.  The  Atlantic  &  Virginia  Fertilizer  Com- 
pany were  the  manufacturers  of  a  fertilizer  which  was  labelled 
on  the  bags  containing  it:  "Eureka,  two  hundred  pounds  am- 
moniated  bone  superphosphate  of  lime,"  and  which  was  sold  by 
its  agents  to  different  parties,  some  of  whom  gave  their  nego- 
tiable notes,  with  Kishpaugh  as  endorser  of  the  same.  The  notes 
were  not  paid,  and  in  an  action  of  debt  by  the  company  against 
Kishpaugh  his  sole  defence  under  the  plea  of  nil  debet  was,  that 
the  labels  on  the  bags  were  not  in  conformity  with  the  statute 
(Section  48,  Chapter  86,  Code  of  1873),  and  that  consequently 
the  sales  made  to  the  makers  of  the  notes  for  whom  he  was  en- 
dorser were  illegal  and  void.  Held :  The  label  aforesaid  was  a 
sufficient  compliance  with  the  terms  of  the  statute,  and  that  the 
company  is  entitled  to  recover  on  said  notes  given  for  the  price 
of  said  fertihzers. 

In  the  case  of  Niemeyer  et  als.  vs.  Wright,  75  Va.,  239,  de- 
cided January  27,  1881,  it  was  held :  A  statute  containing  a 
prohibition  and  a  penalty  makes  the  acts  which  it  punishes  un- 
lawful ;  and  the  same  may  be  implied  from  a  penalty  without  a 
prohibition.  But  it  does  not  follow  that  the  unlawfulness  of 
the  act  was  meant  by  the  legislature  to  avoid  a  contract  made 
in  contravention  of  it.  When  the  statute  is  silent,  and  contains 
nothing  from  which  the  contrary  can  be  properly  inferred,  a 
contract  in  contravention  of  it  is  void.  Conceding  the  general 
rule  to  be  as  above  stated,  the  mere  imposition  of  a  penalty 
by  a  statute  for  doing  or  omitting  to  do  an  act  does  not  of  itself, 
in  every  case,  necessarily  imply  an  intention  by  the  legislature 
that  every  such  contract  in  contravention  of  the  statute  shall 
be  void  in  the  sense  that  it  is  not  to  be  enforced  in  a  court  of 
justice.  The  acts  of  March  29,  1871  (Code  of  1873,  Chapter 
227),  and  of  March  29,  1877  (Acts  of  1876-77,  Chapter  249), 
which  require  under  heavy  penalties  certain  things  to  be  done 
by  persons  selling  commercial  manures,  does  not  avoid  the  con- 
tract for  such  sale ;  and  a  party  selling  the  said  manures  may 


Citations  to  the  Code  of  Virginia.  153 

recover  upon  such  contracts  in  an  action  at  law,  though  he  has 
not  complied  with  the  directions  of  the  statutes. 

In  the  case  of  Blanton  {Coratnissionef)  vs.  Southern  Fertilizing 
Co.  et  als.,  11  Va.,  335,  decided  March  29,  1883,  it  was  held : 
Chapter  249,  Acts  1876-'77,  establishing  the  department  of  ag- 
riculture, and  empowering  the  commissioner  of  agriculture  to 
make  all  necessary  rules  and  regulations  for  carrying  out  the  in- 
tentions of  the  act,  does  not  authorize  him  to  levy  a  tax  upon 
manufacturers  and  sellers  of  fertilizers  for  the  purpose  of  raising 
money  for  the  use  of  the  department  in  the  shape  of  the  charge 
on  tags,  as  required  by  rule  No.  2,  or  of  any  charges  on  such 
tags.  But  the  commissioner  has  power  to  enforce  the  use  of  a 
tag  to  be  attached  to  each  package  of  fertilizer  showing  that  the 
same  is  registered  in  the  department  without  any  charge  there- 
for. 

CHAPTEK  LXXXV. 

CHAPTEK  LXXXYI. 

CHAPTEE  LXXXVIL 


TITLE  XXVI. 

CHAPTEE  LXXXVIII. 

CHAPTEE  LXXXIX. 

CHAPTEE  XC. 

CHAPTEE  XCI. 

Section  2004. 

In  Ex  parte  Poole  et  als.,  2  Va.  Cases,  276,  decided  by  the 

General  Court,  it  was  held  :    A  seaman  who  signs  a  contract  to 

perform  a  voyage  is  bound  to  specific  performance,  and  may  not 

elect  to  pay  damages  for  a  breach  of  it,  and  the  master  may,  by 

the  maritine  law,  pursue  and  bring  back  his  seaman  who  deserts. 

CHAPTEE  XCII. 

Section  2007. 

In  the  case  of  Greener  et  als.  vs.  City  Council  of  Portsmouth, 
11  Va.,  488,  decided  May  10,  1883,  it  is  well  settled  that  a  gen- 
eral grant  of  power  carries  with  it  the  necessary  means  to 
effectuate  the  purpose  of  the  grant. 

Act  approved  March  3,  1882,  Session  Acts  1881-82,  page 
216,  entitled,  "  An  act  creating  a  board  of  harbor  commissioners 
of  Norfolk  and  Portsmouth,"  provides  that  the  governor  shall 
appoint  seven  commissioners,   and  defines   their  duties ;   that 


154  Citations  to  the  Code  of  Virginia. 

material  excavated  in  the  harbor  shall  be  deposited  in  a  desig- 
nated place  ;  that  rules  and  regulations  be  made  to  preserve  the 
harbor ;  that  to  defray  the  expenses  there  shall  be  assessed  on 
Norfolk  county  two-sevenths,  on  Norfolk  city  three-sevenths, 
and  on  Portsmouth  two-sevenths  of  the  estimate.  The  commis- 
sioners designated  such  a  place,  and  to  enforce  the  deposit  there, 
employed  an  "  inspector  of  diimping "  at  $60  a  month  salary. 
In  their  assessment  $750  was  included  to  pay  that  salary. 
Portsmouth  admitted  that  the  amount  was  reasonable,  yet  re- 
fused to  pay  any  part  of  the  assessment,  on  the  ground  that  the 
employment  of  the  inspector  is  unauthorized  by  law.  The  tes- 
timony shows  that  his  employment  is  essential  to  enforce  the 
regulation,  and  to  prevent  the  obstruction  of  the  approaches  to 
the  harbor.  Held  :  The  board  hath  lawful  authority  to  appoint 
such  inspector,  and  to  assess  the  sum  necessary  to  pay  his  sal- 
ary upon  the  city  of  Portsmouth,  ratably  with  the  county  and 
the  city  of  Norfolk,  and  the  mandaTnus  is  awarded  as  prayed  for. 


TITLE  XXVII. 

CHAPTEE  XCIII. 

CHAPTEE  XCIV. 

CHAPTEE  XCV. 

CHAPTEE  XCYI. 

Section  2091. 
In  the  case  of  Alexandria  &  Fredericksburg  Railway  Com- 
pany vs.  Faunce,  31  Grat.,  761  and  764,  decided  March,  1879, 
F.  leased  from  Mrs.  O.  the  land  and  a  fishery  in  the  Potomac 
Eiver,  where  the  tide  ebbed  and  flowed,  with  all  the  privileges 
attached  thereto,  for  five  years,  at  a  rent  of  $500  a  year.  He 
built  the  necessary  buildings  and  cleaned  out  the  fish  "berth,  and 
was  largely  engaged  in  carrying  on  the  fishery.  Pending  the 
lease  the  Alexandria  and  Fredericksburg  Eailroad  Company, 
upon  proceedings  against  O.,  had  the  land  for  their  road-bed 
condemned,  and  paid  into  court  the  damages  assessed.  In 
building  the  road  the  company  made  an  embankment  along  the 
line  of  the  river,  pulling  down  some  of  F.'s  buildings,  throwing 
obstructions  into  the  fish  berth,  and  materially  damaging  the 
fishery.  In  an  action  by  F.  against  the  company  to  recover 
damages  for  the  injury  done  to  him,  held :  The  legislature  has 
frequently  recognized  the  rights  of  owners  in  their  respective 
fisheries  on  the  Potomac,  and  by  various  statutes  has  protected 
them  in  their  rights,  and  the  company  could  not,  in  making 
their  road,  injure  the  fishery  of  F.  without  making  just  compen- 


Citations  to  the  Code  of  Yikginia.  155 

sation  for  the  injury.  The  assessment  and  payment  of  the  dam- 
ages into  court  does  not  preclude  F.  from  the  recovery  of 
damages  for  the  injury  he  has  sustained  as  lessee  of  the  fishery. 
The  court  below  certified  the  evidence  in  relation  to  the  lease 
and  what  had  been  done  b}-  F.  under  his  lease,  but  certified 
that  as  to  whether  the  road  was  built  upon  the  strip  of  land 
condemned,  the  evidence  was  conflicting,  and  the  whole  of  that 
evidence  is  not  given.  The  appellate  court  cannot  set  aside  the 
judgment  and  verdict,  though  the  court  may  not  be  entirely  sat- 
isfied that  the  damages  are  not  excessive. 

The  reference  to  75  Va.,  941,  is  no  longer  of  value,  the  statute 
to  which  it  referred  having  been  repealed. 

Section  2092. 

The  reference  to  31  Grat.,  764,  is  to  the  case  cited  supra,  Sec- 
tion 2091,  from  page  761. 

The  reference  to  75  Va.,  941,  is  no  longer  of  use,  the  statute 
to  which  it  referred  having  been  repealed. 

CHAPTEK   XCVII. 

Section  2137. 

In  the  case  of  Power  c&  Kellog  vs.  Tazewell,  25  Grat.,  786, 
decided  February  4,  1875,  it  was  held :  Tazewell  having  under 
the  act  of  April  1,  1873,  obtained  an  assignment  of  certain 
oyster  beds  for  the  planting  and  sowing  of  oysters  for  one  year, 
and  having  paid  the  tax,  and  having  had  the  beds  staked  off  as 
required  before  May  1,  1874,  has  such  an  exclusive  interest  in 
them,  that  he  may  maintain  an  action  of  unlawful  detainer 
against  a  party  who  enters  upon  said  beds  and  holds  them 
against  him. 

In  the  case  of  Ihirst  vs.  Dulaney,  84  Va.,  701,  decided  April  5, 
1888,  it  was  held :  There  can  be  but  one  assignment  for  plant- 
ing oysters.  If  there  has  been  an  assignment  to  the  tenant 
(occupier),  the  owner  is  not  entitled  to  another  assignment  on 
the  same  water-front,  and  such  assignment  is  void. 

Section  2141. 
In  the  case  of  Morgan  vs.  Comvionwealth,  26  Grat.,  992,  de- 
cided December  2,  1875,  it  was  held:  An  indictment  which 
charges  a  party  with  taking  oysters  with  ordinary  oyster  tongs, 
without  paying  the  tax  prescribed  by  law,  charges  no  offence 
against  the  law,  and  is  fatally  defective. 

Section  2147. 
In  the  case  of  McCreudy  vs.   The  Cormnonwealth,  '2>1  Grat., 
985,  decided  Janiiary,  1876,  it  was  held :  The  act  of  April  18, 
1874,  Session  Acts  of  1874,  Chapter  214,  Section  22,  p.  243, 


156  Citations  to  the  Code  op  Virginia. 

which  forbids  the  planting  of  oysters  in  tlie  waters  of  the  State 
by  any  person  not  a  resident  of  the  State,  is  a  constitutional  act ; 
not  in  conflict  with  either  Article  I.,  Section  8,  or  Article  IV., 
Section  2,  of  the  Constitution  of  the  United  States, 

The  navigable  waters  and  the  soil  under  them  within  the  ter- 
ritorial limits  of  the  State  are  at  its  own  discretion  for  the  benefit 
of  the  people  of  the  State ;  only  so  as  not  to  interfere  with  the 
authority  of  the  government  of  the  United  States  in  regulating 
commerce  and  navigation. 

The  immunities  and  privileges  secured  to  all  citizens  of  the 
United  States  by  the  Constitution  are  the  right  to  protection  by 
the  government,  the  enjoyment  of  life  and  liberty;  to  acquire 
and  possess  property  of  every  kind,  and  to  pursue  happiness 
and  safety.  But  they  do  not  include  the  right  to  share  the 
property  belonging  to  the  people  of  the  State. 

CHAPTEE  XOVIII. 

Section  2179. 

In  the  case  of  Boggs  et  als.  vs.  The  Commonwealth,  76  Va,, 
989: 

Idem. — Forfeiture  of  Vessles,  etc.  A  State  is  also  entitled  to 
exact  the  forfeiture  of  vessels  employed  in  violating  her  oyster 
law,  though  the  owner  be  not  implicated  in  the  offence,  and  the 
vessels  so  employed  without  his  consent  or  knowledge. 

4.  Idem. — Acts  of  Confiscation.  Forfeitures  of  rights  and  pro- 
perty cannot  be  adjudged  by  the  legislative  act,  and  confiscation 
without  a  judicial  hearing,  after  due  notice,  would  be  void  as  not 
being  by  due  process  of  law,  Mc  Veigh  vs.  United  States,  11 
Wallace,  267. 

5.  Jurisdiction. — Petition.  So  long  as  the  proceeds  of  con- 
fiscated property  paid  into  court  remain  under  its  control,  any- 
one entitled  to  the  money  may  apply  therefor  to  the  court  by 
petition. 

In  the  case  of  Com^monwealth  vs.  Mister  et  als.,  79  Va.,  5,  de- 
cided March  16,  1884,  it  was  held:  Where  such  issue  is,  whether 
or  not  such  petitioners  owned  the  forfeited  vessels  at  the  time 
of  the  violation  of  said  act,  whereof  the  parties  were  con- 
victed, the  record  of  conviction  of  those  parties  is  irrelevant  to 
that  issue,  and  inadmissible  as  evidence  at  the  trial.  And  so 
likewise  are  all  instructions  which  are  predicated  on  that  con- 
viction. But  an  instruction  is  proper  which  tells  the  jury  to 
find  for  the  petitioners  if  from  the  evidence  they  believe  the 
petitioners  owned  the  vessels  at  the  time  of  the  violation  of  the 
act,  and  that  no  employment  of  said  vessels  in  illegal  oyster 
catching  shall  be  considered  by  the  jury  in  determining  the 
verdict. 

CHAPTEK  XCIX. 


Citations  to  the  Code  of  Virginia.  157 

TITLE  XXVIII. 
CHAPTEE   C. 

Section  2218. 

In  the  case  of  ConiTnonwealth  vs.  Williamson,  4  Grat.,  554,  de- 
cided December,  1847,  it  was  held  by  the  General  Court:  A 
clerk  has  no  authority  when  applied  to  for  a  marriage  license  to 
examine  a  witness  under  oath  as  to  the  age  of  the  parties. 

The  authority  of  the  clerk  to  administer  an  oath  out  of  court 
only  extends  to  cases  in  which,  without  regard  to  circumstances, 
the  making  the  affidavit  is  a  necessary  prerequisite  to  the  per- 
formance of  the  official  act  which  the  clerk  is  called  upon  to 
perform.  The  swearing  falsely  before  the  clerk,  that  a  person 
applying  for  a  marriage  license  is  over  the  age  of  twenty-one 
years,  does  not  constitute  the  offence  of  perjury. 

But  if  by  such  false  oath  the  person  applying  is  enabled  to 
obtain  a  marriage  license,  and  the  marriage  takes  place,  the  tak- 
ing the  false  oath  is  a  misdemeanor. 

In  the  case  of  Mayhush  vs.  Commonwealth,  29  Grat.,  857,  de- 
cided February  7,  1878,  it  was  held :  The  statute  authorizes  the 
clerk  of  a  county  or  corporation  court,  when  an  application  is 
made  to  him  for  a  marriage  license,  to  require  evidence  that  the 
female  to  be  married  is  over  the  age  of  twenty-one  years,  and 
to  administer  the  oath  to  the  person  giving  the  testimony. 

Section '2224. 

• 

In  the  case  of  The  Commonwealth  vs.  Edmund  Perryman  and 
Kiturahman,  2  Leigh,  717,  decided  June,  1830,  it  is  provided 
by  statute  that,  "if  the  brother  hath  married  or  shall  marry  his 
brother's  wife,"  the  marriage  shall  be  dissolved,  the  parties  fined, 
&c.  Held :  The  marrying  a  brother's  widow  is  an  offence  with- 
in the  statute. 

In  the  case  of  Kelly  vs.  Scott,  5  Grat.,  479,  decided  January, 
1849,  it  was  held :  In  prosecutions  prior  to  the  act  of  1827,  for 
marrying  a  deceased  wife's  sister,  or  for  marrying  the  husband 
of  a  deceased  sister,  the  parties  may  appear  by  attorney ;  and 
upon  a  plea  of  guilty  by  the  attorney,  judgment  may  be  entered 
declaring  the  marriage  a  nullity. 

A  judgment  declaring  a  marriage  a  nullity  is  vaHd,  though  it 
does  not  proceed  to  punish  the  parties,  or  to  require  them  to 
enter  into  bonds  with  condition  to  live  separate. 

A  marriage  within  the  prohibited  degrees  having  been  de- 
clared null  by  a  sentence  of  the  court,  the  husband  has  no  in- 
terest in  the  property  which  was  the  wife's  at  the  time  of  the 
marriage ;  and  his  creditors  cannot  subject  it  to  the  payment  of 
his  debts. 


158  Citations  to  the  Code  of  Virginia. 

Section  2227. 
In  the  case  of  Francis  vs.  Francis,  31   Grat.,  283,  decided 
January  9,  1879,  it  was  held :  This  statute  includes  and  applies 
to  colored  persons  so  living  together,  though  they  were  bom 

free. 

It  is  not  necessary  that  there  shall  be  evidence  of  an  actual 
agreement  to  take  each  other  as  husband  and  wife,  but  the  re- 
lation may  be  established  by  proof,  by  the  acts,  conduct,  and 
conversation  of  the  parties. 

In  the  case  of  Woniack  et  als.  vs.  Tanker sley  et  tix.,  78  Va., 
242,  decided  December  13,  1883,  it  was  held:  Marriage  is  a 
civil  contract.  Its  existence  is  provable  like  any  other  fact. 
Eegistry,  certificate,  or  persons  present  at  its  celebration  need 
not  be  produced.  Deliberate  admissions  and  acts  of  a  prisoner, 
coupled  with  cohabitation,  is  Sufficient  to  convict  him.  Delib- 
erate admissions  and  acts  are  also  competent  evidence  of  the 
validity  of  the  marriage,  under  the  lex  loci  contractu. 

When  the  existence  of  the  marriage  is  the  issue,  the  rule  of 
evidence  is  the  same  in  civil  as  in  criminal  proceedings,  and  the 
decision  must  be  on  the  weight  of  the  evidence. 

When  the  court  below  has  determined  the  fact  of  the  ex- 
istence of  the  marriage  upon  the  weight  of  the  evidence,  the 
appellate  tribunal  will  not  overturn  its  decision,  except  in  cases 
of  manifest  error  or  misconduct. 

Here  the  existence  of  the  marriage  was  established  by  the 
proof  of  the  deUberate  admissions  and  acts  of  the  parties,  and 
by  their  cohabitation  and  recognition  as  husband  and  wife, 
without  the  production  of  the  registry  or  certificate,  or  persons 
present  at  the  celebration. 

In  the  case  of  Fitchett  et  als.  vs.  Smith's  Administrator  et 
als.,  78  Va.,  524,  decided  February  28,  1884.  L.  and  S.,  col- 
ored persons,  were  never  married,  but  cohabitated  together  as 
man  and  wife  previous  to  November,  1863,  when  S.  enhsted  in 
the  United  States  army.  The  result  of  the  cohabitation  was  a 
child,  J.  S.  died  in  1865,  but  before  his  death  recognized  the 
child  en  ventre  sa  mere  as  his,  and  declared  his  intention  to 
marry  L.,  who  died  a  few  years  after  the  birth  of  the  child,  the 
latter  subsequently  dying  unmarried  and  childless.  To  this 
child  before  its  death,  the  United  States  government  paid  one 
thousand  two  hundred  dollars  for  her  father's  services.  After  her 
death,  J.'s  maternal  next  of  kin  claimed  that  she  was  illegiti- 
mate, and  that  they  were  entitled  to  her  whole  estate,  which 
claim  was  contested  by  her  paternal  next  of  kin,  who  insisted 
on  the  division  of  the  estate  into  moieties,  one  of  which  should 
be  distributed  among  them.  Held:  The  statute  being  retro- 
spective, legitimated  the  child,  J.,  though  her  parents  had 
ceased  to  cohabit  as  man  and  wife  before  its  passage,  and  P.'s 


Citations  to  the  Code  of  Virginia.  159 

estate  must  be  divided  into  two  moieties,  one  for  the  maternal, 
the  other  for  the  paternal,  next  of  kin. 

In  the  case  of  Smith  vs.  Perry  Administrator,  et  als.,  80  Va., 
563,  decided  June  18, 1885,  it  was  held ;  Under  act  approved  Feb- 
raary,  1866,  to  legalize  marriage  of  colored  persons  living  to- 
gether as  husband  and  wife  at  the  time  of  the  passage,  children 
of  such  persons  are  deemed  legitimate  whether  born  before  or 
after  the  passage  of  the  said  act,  and  whether  any  sort  of  mar- 
riage ceremony  has  taken  place  between  the  parents  or  not. 

In  such  cases  the  question  of  bastardy  must  be  considered  as 
in  any  case  where  bastardy  is  alleged  as  to  a  child  born  during 
coverture,  or  born  before  and  recognized  afterwards. 

This  law  presumes  legitimacy,  where  husband  recognizes  the 
child  as  his  o^vn,  and  impossibility  of  procreation  is  not  estab- 
lished, though  the  cohabitation  had  ceased  before  the  passage  of 
this  act.  Bastards  are  persons  born  out  of  wedlock,  lawful  or  un- 
lawful, or  not  within  competent  time  after  termination  of  cover- 
ture ;  or,  if  born  out  of  wedlock,  whose  parents  do  not  after- 
wards intermarry,  and  the  father  acknowledges  them,  or  who 
are  born  in  wedlock  when  procreation  by  the  husband  is  impos- 
sible. 

In  the  case  of  Scott  vs.  Rauh,  88  Va.,  721,  decided  January 
28,  1892.  Plaintiff  was  bom  in  1862  of  parents  living  together 
as  husband  and  wife  from  1861  to  1864,  he  being  a  colored  man, 
and  she  a  slave  and  dying  then,  and  plaintiff  was  recognized  as 
his  child,  and  as  such  reared  to  womanhood.  Held :  She  was  a 
legitimate  child,  and  entitled  to  share  by  inheritance  in  his  real 
estate. 

Section  2229. 

The  reference  to  78  Va.,  242,  is  to  the  case  of  Womack  et  als. 
vs.  Tankersley  et  ux.,  quoted  supra.  Section  2227. 

CHAPTER  CI. 

Section  2252. 

In  the  case  of  McPherson\s.  The  Commonwealth,'^^  Grat.,939, 
decided  May  1,  1877,  it  was  held :  A  marriage  between  a  white 
man  and  a  woman  who  is  of  less  than  one-fourth  of  negro  blood, 
however  small  this  quantity  may  be,  is  legal.  A  woman  whose 
father  was  white  and  whose  mother's  father  was  white,  and 
whose  great  grandmother  was  of  brown  complexion,  is  not  a 
negro  in  the  sense  of  the  statute. 

In  the  case  of  Kinney  vs.  The  Commonwealth,  30  Grat.,  858, 
decided  September,  1878,  K.,  a  negro  man,  and  M.,  a  white  wo- 
man, both  domiciled  in  the  county  of  Augusta,  Virginia,  left 
Virginia  and  went  to  Washington,  D.  C,  and  were  married  there 
according  to  the  regular  forms  for  celebrating  marriages,  and 


160  Citations  to  the  Code  op  Virginia. 

after  remaining  absent  from  Virginia  about  ten  days,  returned 
home,  in  Augusta  county,  Virginia,  where  they  have  since  lived 
as  man  and  wife.  By  the  laws  of  Virginia  (Code  1873,  Chapter 
105,  Section  1)  all  marriages  between  a  negro  and  a  white  per- 
son are  absolutely  void.  On  an  indictment  for  lewdl}'  and  las- 
civiously associating  and  cohabiting  together.  Held :  Although 
such  marriages  are  not  prohibited  by  the  laws  of  the  District 
of  Columbia,  and  this  marriage  was  performed  according  to  the 
ceremonies  there  prescribed,  it  is  void  under  the  laws  of  Vir- 
ginia, and  the  parties  are  liable  to  the  indictment.  "While  the 
forms  and  ceremonies  of  marriage  are  governed  by  the  laws  of 
the  place  where  the  marriage  is  celebrated,  the  essentials  of  the 
contract  depend  upon,  and  are  governed  by  the  laws  of  the 
country  where  the  parties  are  domiciled  at  the  time  of  the 
marriage,  and  in  which  the  matrimonial  residence  is  contem- 
plated. 

In  the  case  of  Jones  vs.  The  Comtnonwealth,  Gray  vs.  The 
Commomcealth,  80  Va.,  538,  decided  June  18,1885,  it  was  held: 
In  order  to  sustain  an  indictment  iinder  Section  8,  Chapter  7, 
Acts  1877-'78,  making  the  intermarriage  with  a  white  person  a 
felony,  it  is  necessary  first  to  establish  that  the  accused  is  a 
person  with  one-fourth  or  more  of  negro  blood,  id  e&t,  a  negro, 
and  the  burden  of  proving  this  lies  on  the  Commonwealth. 

In  the  case  of  Greenhow  et  als.  vs.  Jmrieis  Executor,  80  Va., 
636,  decided  April  16,  1885,  it  was  held:  The  law  of  the  place 
of  its  celebration  governs  as  to  the  forms  of  ceremony  which 
constitute  marriage.  The  law  of  the  domicile  governs  as  to 
the  capacity  of  the  parties.  But  the  rule  which  requires  that  a 
marriage  valid  where  celebrated  is  valid  everywhere  else,  has 
no  application  to  marriage  entered  into  in  a  foreign  country  in 
contravention  of  the  public  policy  and  statutes  of  the  country 
of  the  domicile  of  the  parties,  which  pronounce  marriage  be- 
tween them  not  only  absolutely  void,  but  criminal.  Code  1873, 
Chapter  118,  Sections  6  and  7,  providing  "that  if  a  man  having 
had  offspring  by  a  woman  shall  afterwards  marry  with  her, 
such  offspring,  if  recognized  by  him  before  or  after  the  mar- 
riage, shall  be  deemed  legitimate,"  and  that  the  issue  of  mar- 
riages deemed  null  in  law,  or  dissolved  by  a  court,  shall  never- 
theless be  legitimate,  does  not  apply  to  and  legitimate  the  off- 
spring of  a  cohabitation  in  this  State  between  a  white  person 
and  a  colored,  when  the  parents  subsequently  have  celebrated 
between  them  a  ceremony  of  marriage  outside  of  this  State,  in 
some  place  where  marriage  between  such  persons  is  lawful. 

Section  2257. 
In  the  case  of  ThrockwMrton  vs.   Throckmorton,  86  Va.,  768, 
decided  April  10,  1890,  it  was  held :  When  adultery  is  charged 


Citations  to  the  Code  of  Virginia.  161 

as  the  ground  of  divorce,  the  proof  thereof  should  be  "  such  as 
to  lead  the  guarded  discretion  of  a  reasonable  and  just  man  to 
the  conclusion  of  the  defendant's  guilt,"  though  ocular  evidence 
is  seldom  affected.  A  married  man  going  into  a  known  brothel, 
especially  if  when  there  he  shuts  himself  up  in  a  room  with  a 
strumpet,  is,  unexplained,  sufficient  proof  of  adultery.  In  the 
case  here,  held  :  The  proof  is  not  sufficient  to  sustain  such 
charge,  nor  that  of  cruelty  or  desertion. 

Section  2258. 
In  the  case  of  Bailey  vs.  Bailey,  21  Grat.,  43,  decided  June, 

1871,  it  was  held:  Abandonment  and  desertion,  which  entitles 
a  husband  or  wife  to  a  divorce  a  mensa  et  thoro,  consists  in  the 
actual  breaking  off  of  matrimonial  cohabitation,  with  the  intent 
to  abandon  and  desert  in  the  mind  of  the  party  so  acting.  And 
the  intent  to  desert  being  once  shown,  the  same  intent  will  be 
presumed  to  continue  until  the  contrary  appears. 

The  statute,  Code,  Chapter  109,  fixes  no  period  for  which  the 
desertion  must  have  continued  to  entitle  a  party  to  a  divorce 
a  mensa  et  thoro.  Desertion  for  less  than  five  years  may  be  in 
good  cause,  and  the  question  is  to  be  determined  by  the  court 
exercising  a  sound  discretion  according  to  the  facts  and  circum- 
stances of  each  case  and  the  principles  of  law  applicable  thereto. 

B.  leaves  his  home  and  family  in  November,  1865,  and  returns 
in  November,  1866,  He  remains  at  home  two  weeks  and  then 
leaves  it,  and  had  not  returned  in  September,  1867,  when  Mrs. 
B.  files  a  bill  for  a  divorce.  B.'s  intention  to  desert  his  wife 
being  clearly  proven,  she  is  entitled  to  a  decree  for  a  divorce 
a  Tiiensa  et  thoro. 

In  the  case  of  Carr  vs.  Carr,  22  Grat.,  168,  decided  April  10, 

1872,  it  was  held  :  That  a  husband  is  rude  and  dictatorial  in  his 
speech  to  his  wife,  exacting  in  his  demands  upon  her,  and 
sometimes  unkind  and  negligent  in  his  treatment  of  her,  even 
when  she  was  sick,  and  worn  and  weary  in  watching  and  nursing 
their  sick  child,  is  no  legal  ground  for  her  leaving  him. 

In  the  case  of  Latham,  hy,  i&c,  vs.  Latham,  30  Grat.,  307,  de- 
cided July,  1878,  it  was  held  :  In  siiits  for  divorce  the  pleadings 
and  rules  of  evidence  are  the  same  as  in  other  suits  in  equity, 
except  that  the  bill  shall  not  be  taken  for  confessed,  and  the 
cause  must  be  heard  independent  of  the  admissions  of  either 
party  on  the  pleadings.  But  where  the  answer  is  responsive  to 
the  allegations  of  the  bill,  the  defendant  is  entitled  to  the  benefit 

tof  it,  as  in  other  cases  in  equity. 
Although  the  fact  that  a  married  man  is  seen  at  a  house  of 
ill-fame  is  strong  evidence  of  the  crime  of  adultery,  yet  it  is  not 
of  itself  conclusive,  and  the  act  is  open  to  explanation  ;  and  it 
was  satisfactorily  explained  in  this  case. 


162  Citations  to  the  Code  of  Virginia. 

Desertion  is  a  breach  of  matrimonial  duty,  and  is  composed, 
first,  of  the  breaking  off  of  matrimonial  cohabitation  ;  and  sec- 
ondly, an  intent  to  desert  in  the  mind  of  the  offender.  Both 
must  combine  to  make  the  desertion  complete.  A  mere  separa- 
tion by  mutual  consent  is  not  desertion  by  either  party. 

The  cruelty  that  authorizes  a  divorce  is  anything  that  tends 
to  bodily  harm,  and  thus  renders  cohabitation  unsafe,  or,  as 
expressed  in  the  older  decisions,  that  involves  danger  of  life, 
limb,  or  health.  There  may  be  cases  in  which  the  husband, 
without  violence,  actual  or  threatened,  may  make  the  marriage 
state  impossible  to  be  endured.  There  may  be  angry  words, 
coarse  and  abusive  language,  humiliating  insults  and  annoyances 
in  all  the  forms  that  maUce  can  suggest,  which  may  as  effectually 
endanger  life  or  health  as  personal  violence,  and  which  would 
therefore  afford  grounds  for  rehef  by  the  court ;  but  what  merely 
wounds  the  feelings,  without  being  accompanied  by  bodily  in- 
jury or  actual  menace,  does  not  amount  to  legal  cruelty. 

The  father  is  the  legal  custodian  of  the  minor  children,  and 
they  will  not  be  taken  from  his  custody  without  the  strongest 
reasons  therefor ;  and  this  right  is  not  affected  by  the  voluntary 
separation  of  the  parties. 

If  the  application  by  the  wife  for  divorce  is  refused,  if  the 
court  is  satisfied  that  she  is  the  chief  object  in  the  way  of  a  re- 
conciliation, and  that  the  husband  is,  under  all  the  circum- 
stances, entitled  to  the  custody  of  the  child,  it  is  impossible  to 
impose  terms  upon  him,  and  to  say  that  he  shall  be  compelled  to 
have  the  child,  under  the  decree  of  the  court,  at  particular 
places  and  times,  to  gratify  the  feelings  and  wishes  of  the 
mother. 

It  may  be  there  are  many  cases  in  which  the  court  might  re- 
fuse a  divorce,  and  yet  allow  alimony  to  the  wife.  But  if  the 
husband  is  willing  to  be  reconciled  to  the  wife  upon  terms  she 
can  properly  accept,  if  he  has  not  abandoned  her,  if  his  conduct 
has  not  been  such  as  to  justify  her  separation  from  him,  she  is 
not  entitled  to  alimony. 

In  the  case  of  Myers,  by. and  vs.  Myers,  83  Va.,  806,  decided 
October,  1887,  it  was  held :  Divorce  from  bed  and  board  may 
be  granted  for  any  conduct  that  renders  cohabitation  unsafe, 
that  involves  danger  of  life,  limb,  or  health.  But  there  may  be 
angry  words,  coarse  and  abusive  language,  humiliating  insults, 
and  annoyances  in  all  forms  that  malice  can  suggest,  which  may 
as  effectually  endanger  life  and  health  as  personal  violence,  and 
which  would  therefore  afford  grounds  for  rehef  by  the  court. 

Section  2260. 
In  the  case  of  Bailey  vs.  Bailey,  21  Grat.,  43,  decided  June, 
1871,  it  was  held :  The  Act,  Code,  Chapter  109,  Section  9,  is  not 
intended  to  change  the  rules  of  evidence  in  divorce  cases ;  and 


Citations  to  the  Code  or  Virginia.  163 

the  letters  of  the  parties  are  admissible  in  evidence  for  the 
plaintiff  to  show  the  intention  of  the  defendant  to  abandon  and 
desert  her. 

In  the  case  of  Latham,  hy,  (&c.,  vs.  Jjxtham,  30  Grat.,  307, 
decided  July,  1878,  it  was  held :  In  suits  for  divorce,  the  plead- 
ings and  rules  of  evidence  are  the  same  as  in  other  suits  in 
equity,  except  that  the  bill  shall  not  be  taken  for  confessed, 
and  the  cause  must  be  heard  independent  of  the  admissions  of 
either  party  on  the  pleadings.  But  where  the  answer  is  re- 
sponsive to  the  allegations  of  the  bill,  the  defendant  is  entitled 
to  the  benefit  of  it,  as  in  other  cases  in  equity. 

Although  the  fact  that  a  married  man  is  seen  at  the  house  of 
ill-fame  is  strong  evidence  of  the  crime  of  adultery,  yet  it  is  not 
of  itself  conclusive,  and  the  act  is  open  to  explanation ;  and  it 
was  satisfactorily  explained  in  this  case. 

Desertion  is  a  breach  of  matrimonial  duty,  and  is  composed, 
first,  of  the  breaking  off  of  matrimonial  cohabitation ;  and  sec- 
ondly, an  intent  to  desert  in  the  mind  of  the  offender.  Both 
must  combine  to  make  the  desertion  complete.  A  mere  separa- 
tion by  mutual  consent  is  not  desertion  by  either  party. 

The  cruelty  that  authorizes  a  divorce  is  anything  that  tends 
to  bodily  harm,  and  that  thus  renders  cohabitation  unsafe,  or, 
as  expressed  in  the  older  decisions,  that  involves  danger  of  life, 
limb,  or  health.  There  may  be  cases  in  which  the  husband, 
without  violence,  actual  or  threatened,  may  make  the  marriage 
state  impossible  to  be  endured.  There  may  be  angry  words, 
coarse  and  abusive  language,  humiliating  insults  and  annoy- 
ances in  all  the  forms  that  malice  can  suggest,  which  may  as 
effectually  endanger  life  or  health  as  personal  violence,  and 
which  would  therefore  afford  grounds  for  relief  by  the  court ; 
1  )ut  what  merely  wounds  the  feelings  without  being  accompanied 
Ijy  bodily  injuiy  or  actual  menace,  does  not  amount  to  legal 
cruelty. 

Tlie  father  is  the  legal  custodian  of  the  minor  children,  and 
they  will  not  be  taken  from  his  custody  without  the  strongest 
reasons  therefor ;  and  this  right  is  not  affected  by  the  voluntary 
separation  of  the  parties. 

If  the  application  by  the  wife  for  divorce  is  refused,  if  the 
court  is  satisfied  that  she  is  the  chief  object  in  the  way  of  a 
reconciliation,  and  that  the  husband  is,  under  all  the  circum- 
-tances,  entitled  to  the  custody  of  the  child,  it  is  impossible  to 
impose  terms  upon  him  and  to  say  that  he  shall  be  compelled 
to  have  the  child,  under  the  decree  of  the  court,  at  particular 
places  and  times,  to  gratify  the  feelings  and  wishes  of  the  mother. 

It  may  be  there  are  many  cases  in  which  the  court  might  re- 
fuse a  divorce,  and  yet  allow  alimony  to  the  wife.  But  if  the 
husband  is  willing  to  be  reconciled  to  the  wife  upon  terms  she 


164  Citations  to  the  Code  of  Virginia. 

can  properly  accept,  if  lie  has  not  abandoned  her,  if  his  conduct 
has  not  been  such  as  to  justify  her  separating  from  him,  she  is 
not  entitled  to  alimony. 

In  the  case  of  Cralle  vs.  Cralle,  79  Va.,  182,  decided  May  1, 
1884,  it  was  held:  In  suit  for  divorce,  the  admissions  of  the 
plaintiff  are  competent  evidence  to  support  the  averments  of 
the  answer.  Where  husband,  in  1874,  obtained  an  order  of 
pubhcation  against  abs^ent  wife,  decree  of  divorce  a  vinculo 
inMrimonii  for  wilful  desertion  for  five  years,  and  in  1876  wife 
asks  for  rehearing  and  for  ahmony,  and  proves  at  rehearing,  by 
plaintift's  admissions  and  otherwise,  that  the  desertion  was  not 
wilful,  in  fact  not  hers  but  his.  Held:  The  plaintiffs  admis- 
sions are  admissible  evidence  to  support  the  allegations  of  de- 
fendant's answer.  She  might  have  asked  to  have  the  decree  of 
divorce  set  aside,  and  though  not  asking  for  that,  she  is  entitled 
to  her  support  out  of  plaintiff's  estate.  Equity,  regarding  sub- 
stance rather  than  form,  will  treat  her  answer  as  a  cross-bill, 
and  give  her  what  on  the  latter  she  would  be  entitled  to. 

But  in  estimating  the  allowance  for  alimony,  no  account  should 
be  taken  of  acquisitions  of  the  plaintiff  after  the  date  of  the  de- 
cree of  divorce. 

In  the  case  of  Hampton  vs.  Hampton,  87  Va.,  148,  decided 
December  4,  1890,  it  was  held :  In  suit  for  divorce  the  bill  can- 
not be  taken  for  coLfessed,  and  whether  answered  or  not,  shall 
be  heard  independently  of  admissions  of  either  party,  and  its 
charges  proved  by  full  and  clear  testimony.  An  evidence  that 
defendant  admitted  the  charge,  and  a  letter  from  her  purporting 
to  admit  it,  are  inadmissible. 

In  the  case  of  Marshall  vs.  Baynes,  88  Va.,  1040,  decided 
April  21,  1892.  Pending  suit  for  divorce  a  mensa  et  thoro,  hus- 
band and  wife  agreed  to  live  separate,  each  to  acquire  and  hold 
property  free  from  the  claims  of  the  other,  and  that  decree  to  be 
entered  confirming  the  agreement.  Afterwards  decree  was 
entered  reciting  the  taking  of  depositions,  and  arguments  of 
counsel  and  confirming  the  agreement.  Held :  The  decree  was, 
in  substance,  for  a  divorce  from  bed  and  board,  within  Code, 
Section  2264,  and  was  final  and  valid,  and  operated  upon  after- 
acquired  property,  and  the  legal  rights  and  capacities  of  the 
parties  as  a  decree  from  the  bond  of  matrimony,  except  that 
neither  party  could  marry  again  during  the  life  of  the  other. 

The  fact  that  the  decree  confirmed  the  agreement  did  not 
make  it  a  decree  on  the  admissions  of  the  parties. 

Section  2261. 
In  the  case  of  Cralle  vs.  Cralle,  81  Va.,  773,  decided  April  25, 
1886.     Pending  appeal  from  decree  to  which  supersedeas  has 
been  issued  and  perfected  by  bond,  the  only  orders  the  court 


Citations  to  the  Code  of  Virginia.  165 

below  can  make  in  the  suit  are  such  as  are  needed  to  preserve 
the  rem  in  litigation. 

Code  1873,  Chapter  105,  Section  10,  authorizes  trial  court 
pending  the  suit  to  compel  the  man  to  pay  the  sums  necessary 
to  maintain  the  woman  and  enable  her  to  carry  on  the  suit; 
yet  it  does  not  justify  it  to  make  any  order  for  such  pur- 
pose, pending  appeal  here  from  decree  rendered  in  same  suit 
for  alimony.  Pending  a  divorce  suit,,  trial  court  decreed  ali- 
mony to  the  womaa.  From  the  decree,  appeal  was  taken 
and  sujyersedeas  awarded.  Pending  the  appeal,  trial  court  de- 
creed to  the  woman  an  allowance  of  one  hundred  and  fifty 
dollars  to  enable  her  to  defend  the  suit  in  this  court,  and 
twenty-five  dollars  a  month  for  her  maintainance  during  the 
pendency  of  the  suit.     On  appeal  from  last  decree.     Held : 

1.  The  court  below  was  authorized  to  make  the  decree  last 
appealed  from. 

2.  The  amount  decreed,  however,  being  less  than  the  mini- 
mum jurisdictional  sum,  the  appeal  must  be  dismissed. 

The  appellant's  remedy  is  by  writ  of  prohibition  from  this 
court  to  the  execution  of  the  decree. 

Section  2262. 

In  the  case  of  Thochnorton  vs.  TJiockmorton,  86  Va.,  768, 
decided  April  10,  1890,  it  was  held :  When  adultery  is  charged 
as  the  ground  of  divorce,  the  proof  thereof  should  be  "  such  as 
to  lead  the  guarded  discretion  of  a  reasonable  and  just  man  to 
the  conclusion  of  the  defendant's  guilt,"  though  ocular  evidence 
is  seldom  affected.  A  married  man  going  into  a  known  brothel, 
especially  if  when  there  he  shuts  himself  up  in  a  room  with  a 
strumpet,  if  unexplained,  is  sufficient  proof  of  adultery.  In  the 
case  here  held,  the  proof  is  not  sufficient  to  sustain  such  charge, 
nor  that  of  cruelty  or  desertion. 

In  the  case  of  Mustek  vs.  Mustek,  88  Va.,  12,  decided  June 
11,  1891,  it  was  held:  In  a  suit  for  divorce,  adultery  may  be 
proved  by  circumstantial  evidence,  such  as  visiting  a  house  of 
ill-fame,  being  shut  up  with  an  unchaste  woman,  consorting 
^vith  prostitutes  and  the  like,  even  in  the  face  of  denial  of  de- 
fendant and  particeps  crimiuis. 

Section  2263. 
In  the  case  of  Bailey  vs.  Bailey,  21  Grat.,  43,  decided  June, 
1871,  it  was  held :  Where  a  wife  is  compelled  to  seek  a  divorce 
from  her  husband  on  account  of  his  misconduct,  in  fixing  the 
amount  of  her  alimony,  the  earnings  of  the  husband  may  be 
taken  into  the  account,  if  necessary,  as  well  as  his  property.  In 
such  a  case,  in  fixing  the  amount  of  the  alimony,  the  court  will 
not  seek  to  find  how  light  the  burden  may  possibly  be  made, 


166  Citations  to  the  Code  of  Virginia. 

but  what  under  all  the  circumstances  will  be  a  fair  and  just 
allotment. 

In  the  case  of  Carr  vs.  Cair,  22  Grat.,  168,  decided  April  10, 
1872,  it  was  held  :  A  wife  having  left  her  husband  without  good 
legal  grounds  is  not  entitled  to  alimony.  A  wife  having  left  her 
husband  without  good  legal  grounds,  and  taken  their  child  with 
her,  though  there  is  no  other  imputation  upon  her  conduct, 
upon  a  decree  for  divorce  a  laensa  et  tJioro  at  the  suit  of  the 
husband,  on  the  ground  of  desertion,  the  child  Avill  be  restored 
to  the  husband,  though  it  is  a  female  and  but  three  years  old ; 
and  though  the  husband's  treatment  of  his  wife  has  been  coarse, 
rude,  petulant,  close,  exacting  and  penurious,  leaving  her  to 
bear  alone  burdens  and  trials  which  it  should  have  been  his 
highest  pleasure  to  share  and  relieve. 

This  reference  to  27  Grat.,  307,  is  an  error. 

In  the  case  of  Porter  vs.  Porter,  27  Grat.,  599,  decided  July 
26,  1876,  it  was  held:  E.  is  possessed  of  an  estate  in  fee 
in  a  tract  of  land,  and  marries  P. ;  and  they  have  two  children 
born  of  the  marriage.  Upon  a  bill  by  P.,  the  marriage  is  dis- 
solved for  the  adultery  and  desertion  of  E.,  but  the  decree 
directs  nothing  as  to  the  property  of  the  parties.  Upon  the 
dissolution  of  the  marriage,  all  the  husband's  claims  to  the  wife's 
land  which  depended  on  the  marriage  were  extinguished,  and 
she  is  entitled  to  the  possession  of  the  lands. 

In  the  case  of  Harris  vs.  Harris,  31  Grat.,  13,  decided  No- 
vember, 1878,  it  was  held :  Alimony  had  its  origin  in  the  legal 
obligation  of  the  husband  incident  to  marriage  state,  to  main- 
tain his  wife  in  a  manner  suited  to  his  means  and  social  position, 
and  although  it  is  her  right,  she  may,  by  her  misconduct,  forfeit 
it,  and  when  she  is  the  offender,  she  cannot  have  alimony  on  a 
divorce  decreed  in  favor  of  the  husband.  So  long  as  he  had 
committed  no  breach  of  marital  duty,  he  is  under  no  obligation 
to  provide  her  a  separate  maintainance,  for  she  cannot  claim  it 
on  the  ground  of  her  own  misconduct. 

According  to  the  ecclesiastical  law,  no  alimony  was  allowed 
on  a  decree  a  vinculo  matrimonii.  And  if  under  the  Virginia 
statute  the  court  has  a  discretion  upon  decreeing  such  a  divorce, 
to  allow  alimony  to  the  wife,  that  discretion  should  be  exercised 
upon  the  principles  which  govern  in  a  case  of  divorce  from  bed 
and  board. 

The  circumstances  must  be  very  peculiar  indeed,  if  any  such 
case  there  should  be,  which  justifying  a  decree  for  an  absolute 
divorce  in  behalf  of  the  husband  for  wilful  desertion  of  the  wife, 
would  at  the  same  time  warrant  a  decree  in  her  behalf,  that  he 
should  out  of  his  own  estate  maintain  her  as  long  as  she  lived, 
although  after  the  divorce  she  would  become  the  wife  of 
another. 


L 


Citations  to  the  Code  of  Virginia.  167 

The  wife  having  left  her  husband  in  1863  upon  the  ground 
that  he  would  not  control  his  servants  and  maintain  her  rightful 
authority  as  his  wife,  the  husband  is  entitled  to  a  decree  for  a 
divorce  a  vinculo  matrimonii  on  the  ground  of  desertion  on  a 
bill  filed  by  him  in  1877.  And  the  wife  having  left  her  husband 
without  any  sufficient  cause,  the  court,  upon  decreeing  the 
divorce,  cannot  allow  her  alimony  out  of  the  husband's  estate. 

In  the  case  of  Francis  vs.  Francis,  31  Grat.,  283,  decided 
January  9,  1879,  it  was  held :  A  certain  sum  monthly  having 
been  allowed  as  alimony  to  the  wife,  the  husband  appeals  from 
the  decree,  and  pending  the  appeal  dies.  The  appellate  court 
affirming  the  decree,  the  wife  is  entitled  to  the  allowance  up  to 
the  time  of  his  death. 

In  the  case  of  Cralle  vs.  Cralle,  79  Va.,  182,  decided  May  1, 
1884,  it  was  held :  Curtesy  and  dower  are  barred  by  decree  of 
divorce  a  vinculo,  and  the  same  principle  applies  to  maintenance 
in  the  absence  of  any  provisions  in  the  decree  as  to  the  parties' 
property  rights. 

In  the  case  of  Cralle  vs.  Cralle,  84  Va.,  198,  decided  Decem- 
ber 1,  1887,  it  was  held  :  When  the  time  at  which  alimony  shall 
begin  to  be  paid  has  been  fixed  by  a  decree,  which,  on  appeal 
here,  has  been  affirmed  in  that  respect,  and  the  case  has  gone 
back  to  the  court  below  to  fix  the  amount,  it  is  error  for  the 
court  to  change  the  time  of  commencing  the  payment. 

When  the  husband  is  of  good  business  habits,  and  owned 
$3,800  worth  of  property  at  the  time  of  the  divorce,  $150  per 
annum  is  reasonable  alimony,  and  in  fixing  the  amount,  evi- 
dence of  a  decree  in  favor  of  the  husband  for  a  legacy  is  admissible. 

Unless  the  commissioner's  account,  on  its  face,  shows  error, 
exceptions  will  not  be  allowed  to  be  made  for  the  first  time  in 
this  court. 

In  the  case  of  Henii\ger  vs.  ITeninger,  18  Southeastern  Re- 
porter, 193,  decided  November  9,  1893,  it  was  held  :  In  ascer- 
taining the  amount  of  alimony  to  which  a  wife  is  entitled,  where 
she  is  granted  a  divorce  and  the  custody  of  the  children,  it  is 
proper  to  take  into  consideration  the  education  of  the  children 
as  an  item  of  expense. 

Under  Code  188Y,  Section  2263,  providing  that  the  court 
shall  make  such  further  decree  as  it  shall  deem  expedient  con- 
cerning the  estate  and  maintenance  of  the  parties,  or  either  of 
them,  and  the  care  and  custody  and  maintenance  of  their  minor 
children,  the  court  may  allow  for  alimony  the  sum  to  educate 
the  husband's  children. 

In  the  case  of  Purcell  vs.  Purcell,  4  H.  cfe  M.,  507,  decided  in 
the  Chancery  Court  of  the  city  of  Eichmond,  February  term, 
1810,  it  was  held  :  The  court  of  chancery  has  jurisdiction  in 
cases  of  application  for  alimony,  though  no  divorce  is  asked. 


168  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Almond  vs.  Almond,  4  Rand.,  662,  decided 
July  21,  1826,  it  was  held:  A  court  of  chancery  has  power  to 
grant  alimony  to  a  wife  in  Virginia  even  without  a  contract  for 
separation,  when  the  misconduct  of  the  husband  is  such  as  to 
render  it  unsafe  for  the  wife  to  live  with  him,  or  he  turns  her 
out  of  doors  without  a  support.  But  such  a  claim  does  not  give 
the  wife  a  right  to  any  specific  property  of  the  husband. 

In  the  case  of  Spencer  vs.  Ford,  1  Rob.,  608,  2d  edition,  685. 
A  suit  for  alimony  being  brought  by  a  wife  against  her  husband, 
who  has  deserted  her  and  left  the  Commonwealth,  and  a  sum  of 
money  being  obtained  for  her  by  her  attorney  at  law  by  a  com- 
promise of  that  suit,  held:  That  on  a  hill  in  equity  in  the  name 
of  the  feme  by  her  next  friend  against  the  attorney  for  the 
money  so  obtained  by  him,  a  decree  may  be  rendered  for  the 
same,  although  the  husband  be  no  party  to  the  suit. 

Section  2264. 

In  the  case  of  Jennings  et  als.  vs.  Montagioe,  2  Grat,,  350,  de- 
cided October,  1845,  it  was  held:  The  statute  does  not  au- 
thorize the  court  to  interfere  with  or  defeat  the  vested  rights  of 
creditors,  or  hona  fide  alienees  or  incumbrancers,  which  at- 
tached upon  the  property  prior  to  the  institution  of  such  pro- 
ceedings for  divorce,  and  when  the  property  was  the  absolute 
property  of  the  husband. 

An  attachment  against  the  effects  of  the  husband  as  an  ab- 
sconding debtor,  levied  before  the  institution  of  a  suit  by  the 
wife  for  a  divorce,  entitles  the  attaching  creditor  to  be  satisfied 
out  of  the  attached  effects,  in  preference  to  the  claim  of  the  wife. 

In  the  case  of  Marshall  vs.  Baynes,  88  Va.,  1040,  decided 
April  21,  1892.  Pending  suit  for  divorce  a  mensa  et  thoro,  hus- 
band and  wife  agreed  to  live  separate,  each  to  acquire  and 
hold  property  free  from  the  claims  of  the  other,  and  that  decree 
be  entered  confirming  the  agreement.  Held :  The  decree  was, 
in  substance,  for  a  divorce  fi-om  bed  and  board,  within  this  sec- 
tion, and  was  final  and  valid,  and  operated  upon  after-acquired 
property,  and  the  legal  rights  and  capacities  of  the  parties  as 
a  decree  from  the  bond  of  matrimony,  except  that  neither  party 
could  marry  again  during  the  hfe  of  the  other. 

After  decree  of  separation,  the  woman  acquired  land  and  sold 
it  to  the  appellant.  After  the  death  of  both  the  man  and  woman, 
her  heirs  brought  ejectment  for  the  land,  and  the  circuit  court 
rendered  judgment  for  the  plaintiffs.     Held :  Error. 

Section  2265. 
In  the  case  of  Musick  vs.  Musick,  88  Va.,  12,  decided  June 
11,  1891,  it  was  held:    Under  this  section,  which  is  constitu- 
tional, the  court  may,  in  such  suit,  decree  that  the  guilty  party 
shall  not  marry  again  unless  such  decree  be  annulled. 


Citations  to  the  Code  of  Virginia.  169 

CHAPTEE  CII. 

Section  2267. 

In  the  case  of  Blow  vs.  Maynard,  Lawrence  vs.  Blow,  2 
Leigh,  29,  decided  March,  1830.  A  husband  dies  entitled  to  re- 
version of  lands;  his  widow  is  not  entitled  to  dower  thereof. 
A  husband  makes  a  fraudulent  conveyance  of  real  estate  to  the 
use  of  himself  and  children,  and  contingently  to  the  use  of  his 
wife,  who  does  not  execute  the  conveyance ;  the  husband  dies ; 
a  creditor  exhibits  his  bill  against  his  children  and  the  widow 
to  avoid  the  conveyance  as  voluntary  and  fraudulent;  the  widow 
claims  under  the  conveyance ;  it  is  declared  fraudulent  and  void. 
Held :  The  widow  is  entitled  to  the  dower  of  the  estate. 

A  father  makes  a  voluntary  and  fraudulent  conveyance  of  real 
estate  to  his  children,  and  dies  leaving  other  real  estate  which 
descends ;  upon  a  bill  by  a  creditor  against  the  donees  and  heirs 
at  law,  to  subject  the  land  conveyed  and  land  descended  to  debt 
of  the  donor  and  ancestor,  chancellor  may  decree  a  sale  of 
both,  out  and  out,  to  satisfy  the  creditor's  demand. 

In  the  case  of  Seekright  on  demise  of  Gilliam  vs.  Moore,  4c 
Leigh,  30,  decided  November,  1833.  G.,  by  deed  of  bargain 
and  sale,  sells  and  conveys  a  parcel  of  land  to  M.,  and  M.,  by 
the  deed  of  the  same  date,  conveys  the  same  land  to  trustees 
upon  trust  to  secure  the  purchase-money  thereof  to  G.  Held : 
The  two  conveyances  shall  be  intended  parts  of  the  same  trans- 
action, and  the  seizing  of  M.  was  instantaneous  and  transitory, 
so  that  M.'s  widow  is  not  entitled  to  dower  of  the  land. 

In  the  case  of  Cocke's  J^xecutors  et  ah.  vs.  Phillips,  12  Leigh, 
248,  decided  April,  1841,  it  was  held :  Husband  dies  entitled  to 
a  remainder  in  fee  of  real  estate,  expectant  on  an  estate  of  free- 
hold therein,  his  widow  is  not  entitled  to  dower  of  the  land  when 
the  remainder  falls  in. 

In  the  case  oiMheatley's  Heirs  vs.  Calhoun,  12  Leigh,  264,  de- 
cided April,  1841.  By  articles  between  C.  and  W.  they  agree 
to  join  in  purchase  of  mills  and  two  hundred  acres  of  land  ad- 
joining, and  in  case  that  the  purchase  shall  be  effected,  C.  shall 
keep  the  mills  at  a  salary  to  be  paid  out  of  the  joint  concern, 
and  that  "the  improvements,  privileges,  expenses,  and  profits, 
shall  in  all  respects  be  equal  to  both  parties  and  their  legal 
representatives " ;  they  make  the  purchase  accordingly,  the 
mills,  etc.,  are  conveyed  to  them  jointly;  they  give  their  joint 
bonds  for  the  purchase-money,  payable  in  four  annual  instal- 
ments, and  a  joint  mortgage  of  the  property  to  secure  payment 
of  the  same,  and  then  commence  and  carry  on  the  business  of 
millers  in  partnership  for  several  years ;  the  first  instalment  is 
paid  out  of  the  social  funds,  and  the  residue  of  the  purchase- 
money  out  of  money  borrowed  on  the  credit  of  the  partnership, 


170  Citations  to  the  Code  of  Virginia. 

but  repaid  to  the  lenders  by  W.  alone  after  C.'s  death.  Held : 
Though  C.  and  W.  were  partners  in  the  milling  business,  car- 
ried on  by  them  at  the  mills  so  purchased,  yet  the  mills,  etc., 
were  not  social  property  or  stock,  but  real  estate  purchased  by 
C.  and  W.  individually,  of  which  each  was  tenant  in  common 
with  the  other  of  an  undivided  moiety,  and  therefore  C.'s  widow 
is  dowable  of  his  moiety. 

Two  persons  purchased  real  estate  jointly,  and  one  of  the 
terms  of  their  purchase  is,  that  on  receiving  a  conveyance  from 
vendor,  they  shall,  at  the  same  time,  execute  a  mortgage  of  the 
property  to  secure  payment  of  the  purchase-money ;  vendor 
makes  the  conveyance  to  the  purchasers ;  but  their  mortgage  is 
not  then  executed,  owing  to  difference  between  vendor  and  them 
as  to  the  provisions  to  be  inserted  therein ;  but  the  mortgage  is 
executed  ten  months  afterwards,  in  fulfilment  of  the  original 
contract  of  sale  and  purchase.  Held :  The  rights  of  the  mort- 
gagee are  paramount,  in  equity,  to  the  dower  rights  of  the  pur- 
chasers' wives;  and  upon  the  death  of  one  of  them,  his  widow 
is  dowable  of  his  equity  of  redemption  of  his  moiety,  but  of 
that  only. 

C.  and  W.  make  a  joint  purchase  of  real  estate,  one  of  the 
terms  of  the  purchase  being,  that  on  receiving  a  conveyance  of 
the  property  from  vendor,  purchasers  shall  mortgage  same  pro- 
perty to  secure  payment  of  the  purchase-money;  vendor  exe- 
cutes conveyance  to  C.  and  W.,  and  they  execute  a  mortgage  of 
the  property  according  to  the  agreement ;  C.  dies,  leaving  unpaid 
three-fourths  of  the  purchase-money  with  interest  thereon,  all 
of  which  W.  pays,  except  a  trivial  balance.  Held :  W.  is  en- 
titled to  subrogate,  in  equity,  to  the  rights  of  the  mortgagee, 
and  to  have  satisfaction  out  of  the  mortgaged  subject,  for  the 
excess  of  the  debt  paid  him  above  his  just  proportion,  namely, 
a  moiety  thereof,  and  as  the  rights  of  the  mortgagee  were  para- 
mount to  the  rights  of  C.'s  widow  to  dower,  so  are  the  rights  of 
W.,  by  subrogation,  likewise  paramount  to  her  right  of  dower. 

By  articles  between  C.  and  W.  they  agree  to  make  a  joint 
purchase  of  land,  and  to  divide  the  same  between  them  by  a 
designated  line,  W.  to  pay  the  whole  purchase-money  of  the 
whole  land  to  the  vendor  thereof,  and  C.  to  pay  TV.  the  purchase- 
money  for  his  part  at  a  certain  appointed  time ;  within  the  time 
C.  pays  W.  the  greater  part,  but  not  the  whole  of  the  purchase- 
money  for  his  part  of  the  land ;  and  then  also  within  the  time 
the  contract  between  C.  and  W.  is  rescinded,  "W.  agreeing  to 
take  back  C.'s  part  of  the  land,  upon  condition  that  C.  shall 
have  credit  on  another  account  for  the  money  that  he  has  paid, 
and  C.  dies  never  having  been  let  into  possession  of  the  land  so 
by  him  agreed  to  be  purchased  and  paid  for.  Held  :  That  as 
the  contract  between  C.  and  W.  was  \<rholly  executory,  and  was 


Citations  to  the  Code  of  Virginia.  171 

rescinded  before  C.  had  completed  payment  of  the  purchase- 
money,  and  he  never  had  legal  or  equitable  possession,  he  had 
no  such  equitable  estate  as  that  his  widow  was  dowable  thereof. 

In  the  case  of  M.  Blair  vs.  Thompson  et  als.,  11  Grat.,  441, 
decided  July,  1854.  In  a  bill  by  a  widow  for  dower  in  land  sold 
in  the  lifetime  of  her  husband,  and  coming  to  the  present  owner 
through  several  intermediate  conveyances,  the  present  owner  is 
the  only  necessary  party  defendant. 

W.  bought  land  and  gave  bond  with  S.  as  a  security  for  pur- 
chase-money ;  and  about  eighteen  months  afterwards  he  executed 
a  deed  of  trust  upon  the  land  and  on  personal  property  as  a 
further  security.  Afterwards  he  took  an  oath  as  an  insolvent 
debtor,  and  his  equity  of  redemption  was  sold  to  T.  and  M.,  to 
whom  the  sheriff  conveyed  it.  T.,  M.,  and  S.  then  conveyed 'the 
land  with  general  wan-anty  to  J.,  and  he,  T.,  M.,  and  the  trustee, 
united  in  a  conveyance  to  secure  the  purchase-money.  In  a 
bill  by  the  widow  of  W.  to  recover  her  dower,  she  sets  out  these 
conveyances  and  makes  all  the  parties  to  them  defendants.  J. 
in  his  answer  asks  that  if  she  is  entitled  to  dower,  the  present 
value  thereof  may  be  ascertained,  and  that  there  may  be  a  de- 
cree in  plaintiff's  favor  for  that  amount  against  his  vendors.  M. 
and  S.  insist  they  are  only  sureties  of  T.  Held:  W.  having 
given  bond  and  security  for  the  purchase-money,  the  vendor's 
lien  was  not  retained ;  and  his  widow  is  entitled  to  dower  in  the 
land.  There  cannot  be  a  decree  for  a  specific  sum  in  lieu  of 
dower  without  the  assent  of  all  the  parties  interested.  That  the 
equities  between  the  defendants  do  not  arise  out  of  the  plead- 
ings and  proofs  between  the  plaintiffs  and  defendants,  and 
therefore  there  can  be  no  decree  between  them. 

In  the  case  of  Jones  and  Wife  vs.  Ihighes  et  als..^l  Grat., 
660,  decided  March,  1876.  H.,  by  his  will,  gave  certain  lands, 
which  he  describes,  to  his  sons,  J.  and  D.,  and  by  another  clause 
he  says  if  his  son  J.  should  die  without  issue,  he  gives  certain 
part  of  the  land  given  to  him  to  D. ;  and  if  both  of  his  sons 
should  die  without  issue,  then  all  of  the  aforesaid  lands  should 
go  to  his  daughters,  naming  them.  J.  died  without  children, 
and  the  lands  went  into  the  possession  of  D.,  and  D.  afterwards 
died  without  issue,  and  left  a  widow,  to  whom,  by  his  will,  he 
left  all  of  his  estate,  and  appointed  her  his  executrix.  He  owTied, 
however,  only  personal  estate.  More  than  a  year  after  D.'s  will 
was  admitted  to  probate,  his  widow  filed  her  bill  against  the  ex- 
ecutory devisees  of  H.  to  recover  dower  in  the  lands  which  had 
come  to  D.  under  the  will.  Held  :  The  widow  of  D.  is  entitled 
to  dower  in  the  said  lands.  The  act.  Code  1873,  Chapter  106, 
Section  4,  does  not  apply  to  the  case,  and  her  right  to  dower  is 
not  barred. 

In  the  case  of  Medley  et  als.  vs.  Medley^  27  Grat.,  568,  decided 


172  Citations  to  the  Code  of  Virginia. 

April  29,  1876,  it  was  held :  M.  devised  his  lands  to  his  son  G., 
and  if  G.  should  die  without  having  had  lawful  issue  of  his 
body,  the  said  lands  were  to  be  divided  among  testator's  four 
daughters.  G.  died,  leaving  a  widow,  but  without  having  had 
lawful  issue  of  his  body.  G.'s  widow  is  entitled  to  dower  in  the 
lands  devised  to  him. 

The  case  referred  to  in  31  Grat.,  13-33,  does  not  decide  any- 

*  thing  on  this  point.     The  court  merely  said  that  it  seemed  that 

the  court  might  make  a  decree  reserving  dower  rights  to  the 

wife  in  a  suit  for  divorce,  but  set  the  decree  aside  on  other 

grounds. 

In  the  case  of  Waller  vs.  Waller's  Adirir  et  als.,  33  Grat.,  83, 
decided  March,  1880.  In  1853,  W.,  before  his  marriage,  sells 
and  conveys  a  tract  of  land  to  B.,  and  takes  a  deed  of  trust  to 
secure  the  unpaid  purchase-money.  B.  returns  to  the  North 
during  the  war,  and  in  his  absence  the  land  is  sold  by  the  trus- 
tee under  the  deed  of  trust,  and  W.  purchases  it  for  more  than 
the  debt.  He  is  then  married.  After  the  war  B.  returns  and 
files  a  bill  to  set  aside  the  sale,  and  the  court  annuls  it  and  de- 
crees a  sale  of  the  land  to  pay  to  W.  the  purchase-money  due  to 
him,  and  it  is  sold.  Held  :  The  sale  to  W.  at  the  trustee's  sale 
having  been  decreed  to  be  a  nulHty,  his  widow  is  not  entitled  to 
dower  in  the  land. 

In  the  case  of  Quarles  vs.  Zacy,  4  Munf.,  251,  decided  No- 
vember 15,  1813,  it  was  held :  Although  it  is  not  competent  for 
a  husband,  after  his  marriage,  to  defeat  or  obstruct  his  creditors 
by  selhng  or  exchanging  his  property,  and  taking  a  conveyance 
of  the  money  or  other  property  received  therefor,  to  the  use  or 
for  the  benefit  of  his  wife  and  family  (such  conveyances  being 
deemed  voluntary  and  fraudulent  as  to  creditors),  yet  the  case 
may  be  otherwise  in  relation  to  so  much  of  such  money  or  other 
property  as  goes  to  compensate  the  just  interests  of  the  wife. 
If,  therefore,  the  wife  relinquish  her  right  of  dower  in  other 
land  in  consideration  of  such  conveyance,  the  value  of  such 
dower  ought  to  be  saved  to  her  in  opposition  to  the  claims  of 
her  husband's  creditors. 

In  the  case  of  Blantori  vs.  Taylor,  1  Ya.  (Gilmer),  209,  decided 
November  22,  1820,  it  was  held  :  The  participation  of  a  wife  in 
the  fraud  of  her  husband  will  not  impair  her  rights.  Provision 
in  lieu  of  dower  will  not  be  disturbed  as  fraudulent  as  far  as  it 
is  only  equivalent  to  dower. 

In  the  case  of  Harvey  {Surviving  Partner^  etc.)  vs.  Alexander, 
etc.,  1  Band.,  219,  decided  December,  1822,  it  was  held:  A  wife 
parting  with  her  dower  right  in  real  property,  forms  a  sufficient 
consideration  for  a  subsequent  deed  conveying  other  property 
for  her  benefit.  Although  personal  property  acquired  by  mar- 
riage cannot  be  considered  a  valuable  consideration  to  support 


Citations  to  the  Code  of  Virginia.  173 

a  subsequent  deed  for  the  benefit  of  the  wife,  yet  it  is  meritorious 
consideration,  and  the  deed  will  be  supported  or  set  aside,  ac- 
cording to  circumstances. 

A  deedinot  lodged  to  be  recorded  until  eight  months  after  its 
date,  and  not  proved  by  the  witnesses  on  whose  testimony  it 
was  recorded  to  have  been  sealed  and  delivered  within  eight 
months  before  it  was  recorded,  is  not  good  as  a  recorded  deed. 

In  the  case  of  Taylor  vs.  Moore,  2  Rand.,  563,  decided  June 
16,  1824,  it  was  held :  If  a  married  woman  relinquishes  dower 
in  lands,  under  a  promise  that  other  property  shall  be  settled 
on  her  as  a  compensation,  such  settlement  will  be  good,  though 
made  after  the  relinquishment.  But  if  the  value  of  the  property 
settled  exceed  the  value  of  the  dower  relinquished,  the  deed 
should  be  set  aside  as  to  the  excess,  and  supported  as  to  the 
residue. 

In  the  case  of  Harrison  vs.  Carrol^  11  Leigh,  476,  decided 
January,  1841 :  Husband  and  wife  agree  by  parol  that  the  hus- 
band shall  settle  personal  property  to  the  separate  use  of  the 
wife,  and  that  the  wife  shall  relinquish  her  contingent  right  of 
dower  in  certain  lands  of  the  husband,  which  he  proposes  to 
convey  for  the  benefit  of  creditors.  The  settlement  upon  wife 
is  executed  accordingly.  Afterwards  a  creditor  of  the  husband 
obtains  judgment  against  him,  sues  out  a  Jie7'i  facias  thereon, 
and  delivers  it  to  the  sheriff;  and  then  the  wife,  in  pursuance  of 
her  agreement,  joins  her  husband  in  a  deed  conveying  the  lands. 
Held :  The  property  settled  on  the  wife  is  liable  to  the  execu- 
tion of  the  judgment  creditor,  and  equity  will  not  restrain  him 
from  proceeding  to  make  his  debt  out  of  same. 

In  the  case  of  William  and  Mary  College  vs.  Powell  et  als., 
12  Grat.,  372,  decided  April,  1855,  it  was  held:  A  post-nuptial 
settlement  is  made  by  a  husband  upon  his  wife.  The  wife 
afterwards  dies,  and  then  a  bill  is  filed  by  the  creditor  of  the 
husband,  against  her  children,  to  set  aside  the  settlement  as 
fraudulent  to  the  creditor.  The  husband  is  not  a  competent 
witness  to  prove  the  consideration  upon  which  the  settlement 
was  made.  Such  a  settlement  is  made  which  recites  the  con- 
sideration in  part  the  agreement  of  the  wife  to  unite  in  a 
conveyance  of  land,  a  part  of  which  is  her  own,  derived  from 
her  father,  and  in  another  part  of  which  she  has  a  right  of 
dower,  for  the  purpose  of  paying  a  debt  of  her  husband,  and 
she  does  afterwards  unite  in  the  conveyance.  The  deeds  them- 
selves are  proofs  of  the  consideration,  and  the  settlements  will 
be  sustained  to  the  extent  of  the  value  of  the  interest  she 
conveys. 

In  the  case  of  BurweWs  Executor  vs.  Lumsden  et  als.,  24 
Grat.,  443,  decided  March,  1874,  it  was  held:  It  is  settled  law 
in  this  State,  that  if  a  married  woman  relinquishes  her  claim 


174  Citations  to  the  Code  of  Virginia. 

for  dower  on  the  faith  of  a  settlement  of  other  property  made 
by  her  husband,  or  even  if  she  make  a  relinquishment  under  a 
mere  promise  that  other  property  shall  be  settled  on  her  for  a 
compensation ;  in  either  ease  such  settlement  in  her  fayor  will  be 
held  good  to  the  extent  of  a  just  compensation  for  the  interest 
so  relinquished.  If  the  value  of  the  property  exceeds  the  value 
of  the  dower,  or  other  interest  rehnquished  by  the  wife,  the 
deed  will  be  vacated  as  to  the  excess,  and  supported  as  to  the 
residue. 

In  the  absence  of  fraud  the  settlement  will  not  be  disturbed, 
unless  it  manifestly  appears  to  be  grossly  excessive. 

In  the  case  of  Davis  s  widow  vs.  Davis's  Creditors,  25  Grat., 
587,  decided  December,  1874.  D.,  who  was  seventy  years  old, 
and  his  wife  A.,  thirty-five,  on  the  consideration  that  A.  would 
unite  with  him  to  convey  to  trustees  three  tracts  of  land  in  trust 
to  pay  his  debts,  conveyed  to  a  trustee  two  tracts  in  trust  for 
A.  for  her  life,  and  then  to  her  children.  On  the  same  day 
D.  and  A.  conveyed  the  three  tracts  to  trustees  to  pay  his 
debts.  At  the  time  it  was  supposed  the  tracts  and  personal 
estate  conveyed  to  pay  D.'s  debts  were  sufficient  for  the  purpose, 
but  owing  to  the  decHne  in  prices,  they  fell  short  of  doing  it. 
After  the  death  of  D.,  some  of  his  creditors  filed  their  bill  to  set 
aside  the  deed  in  trust  for  A.,  on  the  ground  that  the  settlement 
was  grossly  excessive,  and  this  is  ascertained  to  be  a  fact.  Held : 
The  settlement  will  be  set  aside  as  to  excess.  Where  a  wife  is 
induced  to  unite  with  her  husband  in  convejang  away  her  interest 
in  his  real  estate,  upon  condition  that  certain  and  specific  pro- 
perty shall  be  settled  on  her  in  consideration  of  her  thus  part- 
ing with  her  rights,  if  ^ch  settlement  is  set  aside  and  anuUed, 
she  has  the  right  to  be  placed  in  the  same  position,  and  restored 
to  the  same  rights  with  which  she  was  invested  by  law  before 
she  united  in  the  deed,  of  which  the  specific  settlement  was  the 
consideration;  provided  this  can  be  done  without  prejudice 
to  the  rights  of  creditors  or  purchasers. 

In  this  case  A.  is  entitled  to  be  restored  as  far  as  possible  to 
the  same  position,  and  invested  with  the  same  rights  she  had 
before  she  united  in  the  deed  with  her  husband ;  the  value  either 
to  be  commuted  in  money,  or  laid  off  in  kind  in  the  lands  not 
sold  by  the  trustees.  And  this  may  be  done  without  prejudice 
to  the  rights  of  creditors  or  purchasers,  as  the  value  of  her 
dower  in  the  five  tracts  may  be  laid  off  to  her  in  two  tracts  con- 
veyed in  trust  for  her  which  are  still  unsold. 

In  the  case  of  Ilurst  vs.  Dulaney,  87  Va.,  444,  decided  Feb- 
ruary 12,  1891,  it  was  held :  Conveyance  of  land  to  buyer,  and 
trust-deed  by  him  to  secure  price,  executed  same  day,  are 
deemed  one  in.equity,  and  wife  of  buyer  is  not  entitled  to  dower 
in  the  land,  the  seisin  of  the  husband  being  only  for  an  instant. 


Citations  to  the  Code  of  Virginia.  175 

The  principal  applies  equally  where  the  trust  deed  is  for  the 
benefit  of  an  assignee. 

In  the  case  of  Deering  &  Co.  vs.  KerfooHs  Executor  et  als., 
89  Va.,  491,  decided  December  15,  1892,  it  was  held:  Land 
bought  with  partnership  funds  for  partnership  purposes  is  so 
far  considered  as  personalty,  that  widow  of  deceased  partner  is 
not  entitled  to  dower  therein,  but  only  to  her  distributive  share 
thereof. 

Section  2269. 
In  the  case  of  Wilson  vs.  Davisson,  2  Rob.,  384,  decided 
August,  1843,  it  was  held,  p.  398 :  When  land  in  which  there  is 
a  right  of  dower  is  sold  in  a  suit  to  which  the  tenant  in  dower  is 
a  party,  the  other  parties  interested  have  a  right  to  insist  that 
instead  of  a  sum  in  gross,  one-third  of  the  purchase-money 
shall  be  set  apart,  and  the  interest  thereof  paid  annually  to  the 
tenant  in  dower  during  her  life. 

In  the  case  of  leage,  etc.,  vs.  Boisseux,  15  Grat.,  83,  decided 
January,  1859,  it  was  held  :  Before  decreeing  the  sale  of  a  house 
and  lot,  the  court  should  determine  the  priorities  as  between  the 
building  fund  companies  and  the  assignee  of  the  mechanic's 
lien  ;  and  it  is  error  merely  to  decree  a  sale  and  direct  the  pro- 
ceeds to  be  brought  into  court. 

A  copy  of  the  valuations  of  the  referees  is  filed  with  the  bill, 
and  though  noticed  in  the  answer  is  not  objected  to.  It  is  re- 
ceived by  the  commissioner  who  settles  the  accounts  as  evi- 
dence, and  no  call  is  made  for  the  original  before  him,  but  there 
is  an  exception  without  date  endorsed  upon  it  as  being  a  copy. 
The  exception  either  came  too  late  or  was  waived  by  the  party. 
In  the  case  of  Robinson  vs.  ShacMett,  29  Grat.,  99,  decided 
September,  1877.  In  1853  S.  and  wife  sold  and  conveyed  to  B. 
land  for  two  thousand  one  hundred  dollars,  retaining  a  vendor's 
lien.  B.  paid  one  thousand  five  hundred  dollars,  and  gave  three 
bonds,  each  of  two  hundred  dollars,  two  of  which  were  assigned 
to  H.  and  one  to  T.  B.  conveyed  the  land  to  T.  in  trust  to  se- 
cure a  debt  of  six  hundred  and  twenty-seven  dollars  to  W.  In 
May,  1858,  B.  and  T.  made  a  private  sale  of  this  land  to  A.  and 
his  wife  for  two  thousand  one  hundred  dollars,  payable  seven 
hundred  dollars  on  the  first  of  August,  1858,  and  the  balance  in 
payments  extending  to  1863  ;  and  A.  and  wife  paid  of  the  pur- 
chase-money five  hundred  and  ninety-two  dollars,  which  was 
applied  to  the  debt  of  W.  In  1860  H.  and  T.  filed  a  bill  against 
A.  and  wife  and  others  for  specific  execution  of  the  contract  and 
to  sell  the  land  to  pay  the  vendor's  lien  held  by  H.  and  T.  In 
May,  1860,  before  a  decree  in  the  cause,  T.,  B.  and  A.  and  wife 
made  a  private  sale  of  the  land  to  R.  for  two  thousand  one  hun- 
dred dollars,  payable  one  thousand  dollars  October  1,  1860,  and 
three  annual  payments.     R.  paid  to  T.  one  thousand  dollai*s, 


176  Citations  to  the  Code  of  Virginia. 

and  gave  bis  bond  to  T.  for  tbe  balance.  This  sale  was  con- 
firmed by  tbe  court  at  the  October  term,  1860.  T.  was  ap- 
pointed a  receiver  to  collect  the  money  and  pay  it  out  to  the 
persons  entitled.  But  he  was  directed  not  to  pay  H.  until  he 
filed  the  bonds  held  by  him  among  the  payers.  T.  paid  the 
debt  of  W.,  retained  enough  to  pay  H.,  and  paid  the  balance  to 
B.  The  bond  of  E.,  due  in  1862,  was  assigned  by  B.  and  T.  to 
S.,  who  recovered  a  judgment  upon  it,  and  then  K.  filed  a  bill 
against  S.  to  enjoin  the  judgment.  The  injunction  was  granted, 
and  afterwards  dissolved ;  and  then  R.  filed  a  bill  of  review,  on 
the  ground  that  the  wives  of  B.  and  A.  were  entitled  to  a  con- 
tingent right  of  dower  in  the  land,  and  that  H.  had  a  lien  on  the 
land.  The  bill  of  review  was  dismissed,  and  E.  appealed. 
Held :  As  the  bonds  of  R.  were  left  in  the  hands  of  T.,  the  re- 
ceiver, to  pay  the  debt  of  H.,  and  were  sufficient  for  that  pur- 
pose if  R.  had  paid  them  to  T.,  H.  can  have  no  lien  on  the  land. 
A.'s  wife  having  been  a  party  to  the  suit,  she  cannot  claim 
dower  in  the  land ;  and  the  proceeds  of  the  land  having  been 
exhausted  by  the  prior  liens  upon  it,  there  is  no  surplus  out  of 
which  she  may  be  endowed. 

In  the  case  of  Coffman  vs.  Coffman,  79  Va.,  504,  decided  Oc- 
tober 6,  1884,  it  was  held  :  When  land  is  conveyed  on  condition 
that  grantee  shall  pay  grantor's  debts,  and  by  deed  executed 
later  on  the  same  day,  that  grantee  conveys  the  land  to  secure 
money  loaned  him  to  pay  his  grantor's  debts,  that  grantee's 
widow  is  entitled  to  dower,  but  not  until  the  said  debts  are  paid, 
though  she  did  not  join  in  the  trust  deed. 

In  the  case  of  Hurst  vs.  Dulaney,  87  Va.,  444,  decided  Feb- 
ruary 12,  1891,  it  was  held :  Conveyance  of  land  to  buyer  and 
trust  deed  by  him  to  secure  price,  executed  the  same  day,  are 
deemed  one  in  equity,  and  wife  of  buyer  is  not  entitled  to  dower 
in  the  land,  the  seisin  of  the  husband  being  only  for  an  instant. 
The  principle  applies  equally  where  the  trust  deed  is  for  the 
benefit  of  an  assignee. 

Section  2270. 

In  the  case  of  Blair  vs.  Thompson  et  als.,  11  Grat.,  441, 
decided  July,  1854,  in  a  bill  by  a  widow  for  dower  in  land  sold 
in  the  life  time  of  her  husband,  and  coming  to  the  present  owner 
through  several  intermediate  conveyances,  the  present  owner  is 
the  only  necessary  party  defendant. 

W.  bought  land,  and  gave  bond  with  S.  as  a  security  for  pur- 
chase-money; and  about  eighteen  months  afterwards  he  exe- 
cuted a  deed  of  trust  upon  the  land  and  on  personal  property 
as  a  further  security.  Afterwards  he  took  an  oath  of  an  in- 
solvent debtor,  and  his  equity  of  redemption  was  sold  to  T.  and 
M.  to  whom  the  sheriff  conveyed  it.  T.,  M.,  and  S.  then  con- 
veyed the  land  with  general  w^arranty  to  J.,  and  he,  T.,  M.,  and 


Citations  to  the  Code  of  Virginia.  177 

the  trustee  united  in  a  conveyance  to  secure  the  purchase-money. 
In  a  bill  by  the  widow  of  W.  to  recover  her  dower,  she  sets  out 
these  conveyances  and  makes  all  the  parties  to  them  defendants. 
J.  in  his  answer  asks  that  if  she  is  entitled  to  dower,  the  present 
value  thereof  may  be  ascertained,  and  that  there  may  be  a  decree 
in  plaintiff's  favor  for  that  amount  against  his  vendors.  M.  and 
S.  insist  they  are  only  sureties  of  T.  Held :  W.  having  given 
bond  and  security  for  the  purchase-money,  the  vendor's  lien  was 
not  retained ;  and  his  widow  is  entitled  to  dower  in  the  land. 
There  cannot  be  a  decree  for  a  specific  sum  in  lieu  of  dower 
without  the  assent  of  all  the  parties  interested.  That  the  equi- 
ties between  the  defendants  do  not  arise  out  of  the  pleadings  and 
proofs  between  the  plaintiffs  and  defendants,  and  therefore  there 
can  be  no  decree  between  them. 

In  the  case  of  Boiling  vs.  Boiling,  88  Va.,  524,  decided  De- 
cember 14,  1891,  it  was  held :  It  is  a  rule  of  the  common  law 
that  wills  of  personal  property  are  to  be  construed  according  to 
the  law  of  the  place  of  testator's  domicile,  wheresoever  the  judi- 
cial inquiry  may  be  made  as  to  its  meaning,  and  there  is  nothing 
in  this  section  indicating  an  intention  to  abrogate  or  change  it. 
Where  a  testator  domiciled  in  New  York  bequeathed  personal 
property  to  his  wife,  but  made  no  disposition  of  his  realty  in 
Virginia,  and  there  is  no  incompatibility  between  her  claim  for 
dower  and  her  claim  to  the  provision,  the  testator's  intention 
must  be  construed  according  to  the  law  of  New  York,  which  is : 
Where  there  are  no  express  words,  there  must  be  on  the  face  of 
the  will  a  demonstration  of  the  testator's  intent  that  the  widow 
shall  not  take  both  dower  and  the  provision. 

Section  2271. 

In  the  case  of  Wilson  vs.  Davisson,  2  Hob.,  384,  decided  Au- 
gust, 1843,  it  was  held :  The  vendor  of  land  conveys  the  same 
to  the  vendee  in  fee-simple  and  receives  part  of  the  purchase- 
money,  but  no  security  for  the  residue.  On  a  bill  in  equity 
against  the  vendee  to  enforce  the  implied  equitable  lien  of  the 
vendor,  a  decree  is  made  for  the  sale  of  the  land,  and  the  pro- 
ceeds are  more  than  sufficient  to  satisfy  what  remains  due  to 
the  vendor.  The  surplus  is  claimed  by  creditors  of  the  vendee, 
who  have  obtained  judgments  against  him  and  taken  him  in 
execution,  from  which  he  escaped;  with  the  vendee's  assent,  a 
decree  is  made  in  favor  of  those  creditors  for  the  surplus. 
Afterwards,  the  vendee  dying,  a  bill  is  filed  by  his  widow 
against  those  in  possession  of  the  land,  to-wit,  one  to  whom 
the  purchaser,  at  the  sale  under  the  decree,  had  aliened  the 
whole,  and  two  others  to  whom  that  one  had  aliened  a  part 
claiming  to  be  endowed.  Held:  (by  two  judges)  That  the 
lands  in  the  hands  of  the  purchasers  are  not  chargeable  to  the 
12 


178  Citations  to  the  Code  of  Yirginia. 

widow,  and  that  her  bill  must  be  dismissed;  dissented  to  by 
Allen,  J.,  whose  opinion  was,  that  the  widow  was  entitled  to 
dower  in  the  surplus  which  remained  after  satisfying  the  ven- 
dor's lien,  and  that  the  amount  to  which  she  was  entitled  con- 
stituted a  charge  upon  the  land  in  the  hands  of  the  purchaser 
at  the  sale  under  the  decree,  and  of  those  claiming  under 
him. 

In  the  case  of  CocMs  Executors  et  als.  vs.  Phillips,  12  Leigh, 
248,  decided  April,  1841:  A  married  man  dies  possessed  of 
personal  estate,  leaving  a  will  wherein  he  bequeaths  his  whole 
estate  to  his  nephews  and  nieces,  and  makes  no  provision  for 
or  mention  of  his  wife.  Held:  Upon  the  construction  of  the 
statute  1  Kev.  Code,  Chapter  104,  Sections  26  and  29,  that  in 
order  to  entitle  herself  to  a  distributive  share  of  her  husband's 
personal  estate,  the  widow  must  declare  her  dissatisfaction  with 
the  will,  aU  benefit  under  the  same,  within  the  time,  and  in  the 
manner  prescribed  by  the  statute. 

In  the  case  of  Higginhotham  vs.  Cornwell,  8  Grat,,  83,  de- 
cided July,  1851 :  Husband,  during  the  coverture,  sells  and 
conveys  the  land  with  general  warranty,  but  his  wife  does  not 
join  in  the  deed.  By  this  will  he  gives  his  whole  estate,  real 
and  personal,  to  his  wife  for  her  life,  remainder  to  his  children. 
Held :  She  is  entitled  to  take  under  the  will,  and  also  to  have 
her  dower  in  the  land  sold. 

That  a  provision  for  a  wife  in  a  will  of  her  husband  shall  be 
held  to  be  in  lieu  of  her  dower,  the  will  must  so  declare  in 
terms ;  or  the  conclusion  from  the  provisions  of  the  will  ought  to 
be  as  clear  and  satisfactory  as  if  it  were  expressed. 

In  the  case  of  Dixon  vs.  McCue,  14  Grat.,  540,  decided 
August  28,  1858,  it  was  held :  The  principles  applicable  to  the 
case  of  a  widow  as  to  the  necessity  of  electing  between  her 
right  of  dower  and  the  provisions  of  her  husband's  will,  are  the 
same  as  those  applicable  to  other  persons.  If  the  widow's  tak- 
ing dower  in  the  real  estate  will  clearly  interfere  with  the  provi- 
sions of  the  will,  she  must  elect. 

In  the  case  above  stated,  though  the  widow  kept  possession 
of  the  land  for  the  five  years,  and  cultivated  it,  and  took  a  leg- 
acy of  property  to  the  value  of  five  hundred  dollars  to  aid  her 
in  carrying  on  the  farm,  still  she,  having  been  under  a  mistake 
as  to  her  rights  under  the  will,  will  not  be  held  to  have  elected 
to  take  under  it,  but  may  still  take  her  dower. 

In  the  case  of  Ratherford  vs.  Mayo,  76  Va.,  117,  decided 
January  19,  1882,  it  was  held :  Doctrine  of  election  is  founded 
on  the  same  reasons,  and  governed  by  the  same  rules,  when  ap- 
plied to  a  widow  claiming  dower  as  to  any  other  case. 

One  entitled  to  a  benefit  under  an  instrument  must,  if  he 
claims  that  benefit,  abandon  every  right,  the  assertion  of  which 


Citations  to  the  Code  of  Virginia.  179 

would  defeat,  even  partially,  any  of  the  provisions  of  that  instru- 
ment. 

If  the  widow's  taking  dower  would  interfere  with  any  of  the 
provisions  of  the  will,  she  must  elect. 

Testator  died  in  February,  1862,  leaving  considerable  estate 
in  lands,  slaves,  choses  in  action,  etc.,  and  a  widow  and  five  chil- 
dren. He  gave  each  child  one  thousand  dollars  in  money  or 
lands,  and  to  the  widow  all  the  residue,  durantee  viduitate,  or  if 
she  married,  only  one  half  of  the  same;  how  much  not  fully 
ascertained,  but  much  more  than  her  distributive  share,  and 
more  than  all  the  children  together  received ;  she  did  not  re- 
nounce but  enjoyed  all  these  provisions,  or  those  thereof  which 
the  war  spared,  for  thirteen  years.  Held:  The  provision  was 
intended  for  her  jointure,  and  she  elected  in  Ueu  of  dower. 

In  the  case  of  Nelson's  Administrator  vs.  Kownslar  Executor, 
79  Va.,  468,  decided  October  6,  1884,  it  was  held:  In  order 
that  provision  for  wife  in  will  of  husband  shall  be  held  to  be  in 
lieu  of  dower,  the  will  must  so  declare  in  terms,  or  the  conclu- 
sion from  the  will  must  be  as  clear  and  satisfactory  to  that  effect 
as  if  it  was  so  expressed. 

No  question  of  election  under  Code  of  1860,  between  dower 
and  provision  in  lieu  thereof  arises,  unless  the  intention  to  bar 
dower  is  clear.  Under  Code  of  1873,  unless  the  instruction 
plainly  appears  not  to  bar  dower,  the  election  must  be  made  by 
the  widow  between  the  dower  and  the  provision. 

But  when  any  provision  for  a  wife  is  made  in  her  husband's 
will,  she  may  within  one  year  from  the  admission  of  the  will, 
probate,  renounce  such  provision,  and  take  such  share  of  his 
personal  estate  as  she  would  have  had  if  he  had  died  intestate. 

Section  2274. 
In  the  case  of  Siiniaons  vs.  Lyle's  Adm'r  et  als.,  32  Grat., 
752,  decided  January,  1880.  A  widow  remains  in  the  mansion 
house,  having  with  her  her  two  infant  children,  who  she  sup- 
ports, and  no  assignment  of  dower  is  made  to  her.  She  pays 
a  balance  of  the  purchase-money  for  the  property  secured 
by  the  vendor's  lien,  and  she  pays  the  taxes  due  upon  the  pro- 
perty. As  against  judgment  creditors  of  her  late  husband, 
held :  She  is  entitled  to  be  paid  for  the  amount  of  the  taxes  she 
has  paid,  and  they  are  the  prior  lien  upon  the  property.  She 
is  to  be  paid  for  so  miich  of  the  purchase-money  paid  by  her  as 
was  properly  payable  by  the  heirs ;  and  this  is  also  a  prior  lien 
on  tlie  property  as  against  the  creditors.  Having  held  the  man- 
sion house,  and  the  heirs  being  infants,  unable  to  assign  dower, 
she  must  be  considered  as  holding  one-third  of  the  house  as 
doweress,  and  liable  to  pay  one-third  of  the  interest  of  the  said 
purchase-money  during  her  life.     It  being  necessary  to  sell  the 


180  Citations  to  the  Code  of  Virginia. 

property,  and  therefore  to  fix  the  present  amount  chargeable  to 
her  on  account  of  said  interest,  the  annual  interest  is  to  be 
treated  as  an  annuity,  to  be  computed  for  so  many  years  as  she 
may  be  supposed  to  live,  regard  being  had  to  her  state  of 
health ;  and  the  sum  so  ascertained  in  gross  is  to  be  deducted 
from  the  amount  of  the  purchase-money  paid  by  her.  There 
being  accounts  to  be  taken  in  the  cause,  so  that  the  property 
cannot  be  sold  at  once,  the  court  should  appoint  two  or  more 
discreet  persons  to  fix  a  rent  upon  the  house,  and  if  the  widow 
will  take  it  at  the  rate  so  fixed,  she  to  pay  two-thirds  thereof,  it 
should  be  rented  to  her  ;  and  as  the  court  has  funds  of  hers  un- 
der its  control  sufficient  to  pay  the  rent,  no  security  should  be 
required  of  her. 

In  the  case  of  Hamon  et  als.  vs.  Ilonnihan  et  als.,  85  Va., 
429,  decided  September  20, 1888.  Under  this  section  the  widow 
being  entitled  to  hold  mansion  and  curtilage  until  dower  is 
assigned.  Held  :  Her  possession  not  being  adverse,  will  not  in 
law  be  so  deemed,  and  the  statute  of  limitations  will  not  begin 
to  run  until  such  possession  ends,  or  she  pubHshes  her  claim 
and  her  possession  to  be  adverse  and  hostile  by  open  and 
actual  disseizin. 

Section  2275. 

In  the  case  of  Moore's  et  ux.  vs.  Waller^  2  Band.,  418,  de- 
cided March  30,  1824,  it  was  held :  An  assignment  of  dower,^ 
made  by  commissioners  under  an  order  of  court  at  the  instance 
of  one  of  several  co-heirs,  is  binding  on  the  widow,  provided  it 
be  a  full  and  just  assignment ;  and  it  is  binding  also  on  the  co- 
heirs, even  if  they  are  infants,  provided  the  assignment  is  not 
excessive. 

At  common  law  the  heir  had  the  power  of  assigning  dower 
without  resorting  to  any  court  whatever,  and  that  power  is  not 
impaired  by  the  act  of  assembly.  If  the  widow  keeps  posses- 
sion in  such  case  of  the  whole  land  under  pretence  that  the 
assignment  of  dower  was  not  legal,  she  will  be  accountable  to 
the  heirs  for  the  rents  and  profits  of  all  but  her  dower  lands. 

In  the  case  of  Haper  vs.  Sanders,  21  Grat.,  60,  decided  June, 
1871,  testator  directs :  First,  That  so  long  as  his  wife,  L.,  remains 
his  widow,  all  his  property,  real  and  personal,  shall  be  kept  to- 
gether, and  subject  to  the  control  of  his  executor,  but  the  pos- 
session to  remain  with  his  wife  during  her  widowhood.  Second, 
If  she  marries,  she  is  to  take  one-third  of  his  estate,  and  the  re- 
mainder to  go  into  the  possession  of  his  executor,  and  if  in  his 
opinion  it  should  at  any  time  thereafter  be  for  the  interest  of 
testator's  children  to  sell  the  entire  estate  and  loan  the  money 
for  their  benefit,  the  executor  may  sell  the  same  in  his  discre- 
tion. The  widow  renounces  the  will,  and  dower  is  assigned  to 
her  by  an  order  of  the  court,  to  which  the  children  are  not  parties. 


Citations  to  the  Code  of  Virginia.  181 

The  executor  and  widow,  she  selling  her  dower  interest,  join  in 
selling  and  conveying  the  land,  the  executor  acting  under  the 
power.  Held :  The  executor  had  no  authority  to  sell  under  the 
power  during  the  widowhood  of  L. 

On  a  bill  to  set  aside  the  sale  by  the  children,  the  court  may 
set  aside  the  sale  so  far  as  made  by  the  executor,  and  confirm  it 
so  far  as  made  by  the  widow ;  and  direct  a  new  assignment  of 
dower.  Though  the  bill  does  not  praj  that  the  sale  may  be  set 
aside,  yet  if  it  makes  a  proper  case  for  such  relief,  it  may  be 
given  under  the  prayer  for  general  relief. 

In  the  case  of  Ilelm  vs.  Helrris  Administrator  et  als.,  30 
Grat.,  404,  decided  July  18,  1878,  it  was  held:  A  widow  whose 
husband  has  died  leaving  no  children  and  no  debts,  and  has  not 
claimed  the  homestead  in  his  lifetime,  is  not  entitled  to  a  home- 
stead in  the  estate  as  against  his  heirs.  An  order  of  the  county 
court  setting  apart  a  homestead,  made  upon  ex  parte  application 
of  the  widow,  is  of  no  effect  as  against  the  heirs. 

Section  2276. 

In  the  case  of  Wilson  vs.  Davisson,  2  Rob.,  384,  decided  August, 
1843,  it  was  held :  When  the  present  value  of  a  dower  interest  is 
to  be  calculated,  the  probable  duration  of  the  life  by  which  it  is 
limited,  and  the  sum  derived  from  it  annually,  are  first  to  be 
ascertained,  and  then  the  calculation  is  to  be  made,  not  by  dis- 
counting simple  interest,  but  by  discounting  compound  interest. 
For  the  present  value  of  an  annuity  is  that  sum  which,  being 
improved  at  compound  interest,  will  be  sufficient  to  pay  the 
annuity. 

In  the  case  of  Blair  vs.  Thompson  et  als.^  11  Grat.,  441,  de- 
cided August  15,  1854,  it  was  held :  In  a  bill  by  a  widow  for 
dower  in  land  sold  in  the  lifetime  of  her  husband,  and  coming 
to  the  present  owner  through  several  intermediate  conveyances, 
the  present  owner  is  the  only  necessary  party  defendant. 

In  the  case  of  White  vs.  ^\llite,  16  Grat.,  264,  decided  April 
23,  1861,  it  was  held:  Unless  it  is  impossible  to  assign  to 
a  widow  her  dower  in  real  estate  in  specie,  a  court  of  equity 
has  no  power,  under  its  general  jurisdiction,  against  her  will,  to 
decree  a  sale  of  the  real  estate  and  to  provide  her  a  compensa- 
tion in  money  in  lieu  of  her  dower. 

A  widow,  entitled  to  a  dower  in  the  real  estate  of  her  deceased 
husband,  is  neither  a  joint  tenant  in  common  nor  coparcener 
with  the  heirs  at  law,  within  the  meaning  of  the  statute  concern- 
ing partition,  so  as  to  authorize  a  court  of  equity  to  sell  the 
whole  estate  against  her  will,  and  compel  her  to  receive  a 
mouej'ed  compensation  out  of  the  proceeds  in  lieu  of  her  dower. 

In  decreeing  a  sale  at  the  suit  of  the  heirs  of  a  decedent's 
estate,  real  and  personal,  except  the  widow's  share  of  the  slaves, 


182  Citations  to  the  Code  of  Virginia. 

the  court  should  protect  and  secure  to  her  her  interest  in  the 
proceeds  of  the  other  personal  property. 

A  convej'ance  of  slaves  in  trust  for  S.  for  her  life,  and  after 
her  death  to  B.  and  the  heirs  of  her  body  forever.  But  should 
B.  die  without  heirs,  or  heirs  of  her  body,  in  that  case  to  C. 
The  conveyance  does  not  give  B.  a  separate  estate,-  but  upon 
her  marriage,  and  her  husband's  possession  of  the  slaves,  the 
right  of  B.  in  the  slaves  is  vested  in  him. 

In  the  case  of  Simmons  vs.  Lyles  et  als.,  27  Grat.,  922,  de- 
cided November,  1876.  A  vendor  of  land,  who  has  retained  the 
title,  files  a  bill  against  the  widow  and  infant  children  of  the 
vendee,  for  a  sale  of  the  land  to  satisfy  his  debt.  The  widow 
answers,  claiming  dower  in  the  land  subject  to  the  vendor's 
lien.  Judgment  creditors  of- the  vendee  may  make  themselves 
parties  to  the  cause,  and  have  the  land  subject  to  the  vendor's 
lien,  and  the  widow's  dower  applied  to  the  payment  of  their  debts. 

In  such  case  the  debt  of  the  vendor  is  ascertained,  and  a 
commissioner  is  appointed  to  sell  the  land.  He  reports  that  a 
friend  of  the  widow  and  children  of  the  vendee  has  paid  to  the 
vendor  his  debt,  and  therefore  he  did  not  sell  the  land.  The 
vendor  then  ceases  to  be  interested  in  the  case,  and  it  becomes 
the  suit  of  the  creditors  of  the  vendee. 

In  such  a  case,  a  commissioner  is  directed  to  settle  the  ac- 
count of  the  administrator  of  the  vendee,  to  take  an  account  of 
the  vendee's  debts  and  their  priorities,  and  also  of  the  present 
value  of  the  widow's  dower  in  the  land;  and  before  the  com- 
missioner makes  report,  the  court  decrees  a  sale  of  the  land. 
Held :  It  was  premature  to  decree  a  sale  of  the  land  before  the 
debts  of  the  vendee  and  their  priorities  were  ascertained ;  that 
it  could  not  be  so  assigned  before  a  moneyed  compensation  to 
her  in  Ueu  of  her  dower  has  been  ascertained. 

A  widow  is  entitled  as  against  creditors  of  her  husband  by 
lien  created  since  her  marriage  to  have  her  dower  in  his  real 
estate  assigned  in  kind,  if  it  can  be  done  without  regard  to  its 
effect  upon  the  interest  of  his  creditors.  If  from  the  nature  of 
the  property,  or  of  the  husband's  interest  in  it,  the  dower  can- 
not be  assigned  in  kind,  the  court  may  sell  the  property  and 
.make  to  her  a  moneyed  compensation. 

In  this  case  the  vendor  having  acquiesced  in  the  decree  for 
the  payment  of  the  amount  ascertained  to  be  due  to  him,  and 
received  the  money,  upon  appeal  by  the  widow  and  children  of 
the  vendee  from  a  subsequent  decree  for  the  sale  of  the  land 
for  the  payment  of  creditors,  the  appeal  does  not  bring  up  the 
first  decree  so  as  to  entitle  him  as  an  appellee  to  have  that  first 
decree  reviewed  and  reversed  for  error  against  him. 

In  the  case  of  Harrison's  Executors  et  als.  vs.  Payne  et  als.y 
32  Grat.,  387,  decided  November,  1879,  it  wns  held :  Where,  in 


Citations  to  the  Code  op  Virginia.  183 

a  suit  in  equity,  brought  for  the  purpose  of  subjecting  the  real 
estate  of  a  decedent  to  the  payment  of  his  lien  debts  and  an 
assignment  of  dower  to  his  widow,  the  dower  cannot  be  assigned 
in  kind,  and  it  is  necessary  to  sell  the  whole  real  estate,  and  to 
satisfy  the  claim  of  dower  out  of  the  proceeds,  the  court  cannot, 
without  the  consent  of  all  parties,  satisfy  said  claim  by  the  pay- 
ment of  a  gross  sum  out  of  said  proceeds,  but  must  securely  in- 
vest one-third  of  said  proceeds  and  direct  the  interest  on  such 
investment  to  be  paid  to  the  widow  during  her  life  in  satisfac- 
tion of  her  claim  of  dower. 

In  the  case  of  Wilso?i  vs.  Branch  et  als.,  11  Va.,  65,  decided 
January  25, 1883.  Unless  impracticable  to  assign  widow  dower 
in  kind,  a  court  of  equity  has  no  power  against  her  will  to  de- 
cree sale  of  the  real  estate  and  give  her  money  in  lieu  of  dower. 
The  dower  right  of  the  widow  must  be  settled  before  decreeing 
sale  of  the  real  estate. 

It  is  an  acknowledged  rule,  that  when  there  are  two  or  more 
coexisting  disabilities  in  the  same  person  when  his  right  of  ac- 
tion accrues,  he  is  not  obliged  to  act  until  the  last  is  removed. 
This  is  the  rule  under  the  statute  of  limitations. 

If  an  infant,  who  is  a  married  woman,  makes  an  instrument 
avoidable  because  of  her  infancy,  the  disability  of  coverture 
enables  her  to  postpone  the  act  of  avoidance  to  a  reasonable 
time  after  coverture  ended. 

Where  there  is  nothing  more  than  silence,  many  cases  hold 
that  an  infant's  deed  may  be  avoided  at  any  time  after  reaching 
his  majority  until  he  is  barred  by  the  statute  of  limitations,  and 
that  silent  acquiescence  for  any  period  short  of  the  period  of 
limitation  is  no  bar. 

An  infant  feme  covert  and  her  husband,  in  1845,  granted  her 
"maiden  land" — half  of  ''Cedar  Lawn" — to  G.,  who  next  day 
conveyed  it  to  her  husband,  who  owned  the  other  half.  In  1876 
he  and  she  conveyed  the  whole  in  trust  to  secure  his  debt.  He 
died  in  October,  1877.  His  will  was  probated  in  December, 
1878.  In  March,  1879,  B.  and  others  filed  a  creditors'  bill  to 
settle  his  estate  and  subject  his  lands  to  pay  his  debts.  In 
April,  1879,  she  answered,  renouncing  her  husband's  will,  de- 
manding dower  in  his  lands,  disaffirming  her  deed  of  1845  as 
void  by  reason  of  her  then  infancy,  and  denying  that  she  had 
in  any  way  ratified  it.  An  account  showed  that  the  trust  debt, 
amounting  to  SI, 532. 89,  was  the  only  debt  paramount  to  dower. 
The  fee-simple  value  of  "  Cedar  Lawn  "  was  $2,750.  The  court 
below  decreed  that  she  had  ratified  the  deed  of  1845  when  free 
from  the  disability  of  infancy,  and  without  assigning  dower,  but 
reserving  right  to  make  all  orders  to  protect  the  right  of  dower, 
decreed  the  sale  of  the  whole  tract  to  pay  her  husband's  debts. 
On  appeal  here,  held : 


184  Citations  to  the  Code  op  Virginia. 

1.  The  decree,  without  previous  assignment  of  dower  in  kind, 
if  practicable  or  if  impracticable  by  compensation,  was  prema- 
ture and  erroneous. 

2.  The  record  discloses  no  act  done  by  the  widow  to  affirm 
the  deed  of  1845,  made  during  her  infancy. 

3.  Within  a  short  period  after  she  became  of  age,  and  was 
relieved  of  the  disability  of  coverture,  she  disaffirmed  her  deed 
made  during  her  infancy,  and  thereby  rendered  it  void. 

4.  The  trust  deed  of  1876  having  been  made  during  her 
coverture,  cannot  be  regarded  as  affirming  the  deed  made  in 
infancy. 

5.  The  trust  debt,  however,  having  been  acknowledged  in  the 
mode  prescribed  by  law  for  married  women,  is  binding  upon 
the  widow  to  the  extent  of  the  debt  therein  secured,  and  no 
further. 

Section  2277. 

In  the  case  of  Tod  vs.  Baylor,  4  Leigh,  498,  decided  May, 
1833,  it  was  held :  Upon  a  bill  in  equity  by  a  widow  against  the 
alienee  of  her  husband  for  dower  of  lands  aliened  by  her  hus- 
band in  his  lifetime,  the  widow  is  dowable  of  the  lands  as  of 
the  value  thereof  at  the  time  of  alienation,  not  at  the  time  of 
assignment  of  dower;  she  is  entitled  to  no  advantage  from  en- 
hancement of  the  value,  either  by  improvements  made  by  the 
alienee,  or  from  general  rise  in  value,  or  from  any  cause  whatever. 

Upon  a  bill  in  equity  by  a  widow  against  an  alienee  of  the 
husband  for  dower  of  lands  sold,  she  is  not  entitled  to  an  ac- 
count of  profits  from  the  death  of  the  husband,  but  only  from 
the  date  of  the  subpoena  in  the  cause;  otherwise  upon  a  bill 
against  the  heir. 

In  the  case  of  Thomas  vs.  Gammel  and  Wife,  6  Leigh,  9, 
decided  January,  1835,  it  was  held:  An  infant  fevie  covert, 
joining  her  husband  in  a  deed  of  lands,  and  acknowledging  the 
same  before  justices,  upon  privy  examination,  duly  made,  cer- 
tified and  recorded,  according  to  the  statute  of  1792,  is  nowise 
bound  by  such  deed.  Therefore,  she  is  entitled  to  dower  of  the 
lands  conveyed ;  but,  as  her  husband  did  not  die  seised,  she  is 
not  entitled  to  damages. 

Section  2281. 

For  the  case  of  Wilson  vs.  Davisson,  2  Eob.,  384,  see  Ante^ 
Section  2276. 

^  In  the  case  of  tisher  vs.  Clement's  Executor,  82  Va.,  813,  de- 
cided February  3,  1887:  In  suit  against  widow  and  heirs  of 
decedent,  to  subject  his  lands  to  his  debts,  commissioner  was 
directed  to  inquire  and  report  if  she  elected  dower  in  kind  or 
commutation.  Commissioner  reported  that  she  elected  com- 
mutation ;  report  confirmed.     The  lands  were  sold  free  of  dower. 


Citations  to  the  Code  of  Virginia.  185 

^ith  her  consent,  and  by  leave  of  court,  a  lot  in  town  was 
assigned  to  her  for  her  dower;  up  to  her  death  she  possessed 
it.  After  her  death,  on  petition  to  subject  the  lot  to  her  hus- 
band's debts,  held:  The  lot  was  the  widow's  property  in  fee, 
and  passed  to  her  heirs. 

CHAPTEK  CIII. 

Section  2284. 

In  the  case  of  McDearman  vs.  Hodnett  et  als.,  83  Va.,  281, 
decided  April,  1887,  it  was  held:  The  married  woman's  act  does 
not  affect  the  question  of  advancement. 

In  the  case  of  Bugger's  Children  vs.  Dugger  et  als.,  84  Va., 
130,  decided  December  1,  1887,  it  was  held :  A  separate  estate 
created  by  the  gift,  conveyance  or  settlement  of  the  husband  to 
or  for  his  wife,  whether  directly  or  indirectly  through  a  trustee, 
presumptively  excludes  the  husband  from  tenancy  by  the  cur- 
tesy in  said  estate.  Gift  from  husband  to  wife  is  construed  to 
be  for  her  separate  use. 

In  the  case  of  Crabtree  vs.  Dunn  et  als.,  86  Va.,  953,  decided 
June  19,  1890,  it  was  held :  Where  land  is  claimed  by  wife  as 
her  separate  property  against  her  husband's  creditors,  she  is 
not  a  competent  witness  in  support  of  her  claims. 

Section  2286. 

In  the  case  of  Chapman  et  als.  vs.  Price  et  als.,  83  Va.,  392, 
decided  June,  1886,  it  was  held :  At  common  law,  in  grant  of 
estate  of  inheritance  to  married  women,  husband's  right  to  cur- 
tesy could  not  be  excluded ;  and  the  same  as  to  equitable  estates. 
But  as  to  married  woman's  "  separate  estate,"  the  same  may  be 
limited  as  to  give  her  the  inheritance  and  to  exclude  the  hus- 
band from  the  curtesy. 

The  power  of  ahenation  by  deed  inter  vivos,  or  by  will,  is  an 
incident  to  the  "  separate  estate,"  and,  if  not  expressly  or  im- 
pliedly restricted,  always  exists  in  a  married  woman,  just  as  if 
she  were  sole ;  and  if  exercised,  effectually  excludes  husband's 
rights  by  curtesy  or  otherwise. 

In  grant  by  parents  of  an  estate  of  inheritance  in  lands  to 
married  daughter,  occurs  the  following  hahendtim:  "To  have 
and  to  hold  in  her  own  right,  free  from  any  claims  or  demands 
from  her  husband,  or  any  person  claiming  under,  through,  or 
against  him  in  any  way,  now  or  at  any  time  hereafter."     After- 

I wards  the  wife,  by  her  will,  devised  the  land  to  her  children, 
died,  leaving  her  husband  her  surviving  heir.  His  creditors 
brought  their  bill  to  subject  his  supposed  curtesy  in  the  land 
to  his  debts. 
The  terms  of  the  devise  created  a  separate  estate  in  the  wife, 
r— 


I 


186  Citations  to  the  Code  of  Virginia. 

eluded  her  husband  and  all  claiming  under  him  from  all  claims- 
on  the  land. 

In  the  case  of  Yates  vs.  Law,  86  Ya.,  117,  decided  May  % 
1889,  it  was  held :  It  is  a  presumption  of  law,  not  affected  by 
the  married  woman's  act,  that  husband  owns  all  property  in 
possession  of  wife,  especially  if  living  together;  and  to  over- 
come it  she  must  show  by  affirmative  proof  that  the  property  is 
her  own,  and  was  acquired  by  means  not  derived  from  him,  if 
he  be  insolvent;  and  this  rule  exists  in  favor  of  all  persons^ 
having  the  right  to  have  his  property  applied  to  pay  his  debts. 

Section  2285. 

In  the  case  of  Geiger  vs.  BlacTdey  et  als.,  86  Va.,  328,  decided 
September  26,  1889,  it  was  held :  Where  wife  contracts  for  such 
domestic  matters  as  husband  is  held  by  law  responsible  for,  the 
presumption  is  that  the  contract  is  on  the  behalf  of  her  hus- 
band. 

In  the  case  of  McDonald  and  Wife  vs.  Hurst,  Pumell  cfe  Co., 
86  Va.,  885,  decided  May  8,  1890.  Where  a  bill  against  hus- 
band and  wife  to  subject  her  separate  estate  to  judgments^ 
against  them  fails  to  charge  that  at  the  time  she  signs  the  notes 
whereon  the  judgments  were  had,  she  had  separate  property, 
and  that  she  signed  them  with  intent,  expressed  or  implied,  to 
charge  it.     Held :  A  demuiTer  lies. 

Section  2286. 
In  the  case  of  Gentry  vs.  Gentry,  87  Va.,  478,  decided  March 
5,  1891.  As  under  this  section  a  married  woman  may  dispose 
of  her  separate  estate,  make  contracts  in  respect  thereto,  and 
be  sued  on  them,  and  have  a  personal  judgment  rendered  and 
enforced  against  her  and  such  estate,  as  though  she  were  a 
feme  sole.  Held :  Specific  performance  of  her  contract  to  con- 
vey her  separate  estate  in  land  may  be  decreed. 

Section  2288. 

In  the  case  of  Tate  vs.  Perkins,  85  Va.,  169,  decided  July  19^ 
1888.  In  action  on  bond  by  a  married  woman  described  in  de- 
claration "as  assignee  of  obligee,"  and  her  husband  described 
therein  as  "  having  no  interest  in  subject-matter,  but  joined  by 
way  of  conformity  "  upon  demurrer.  Held :  Declaration  unob- 
jectionable. 

In  the  case  of  Gentry  vs.  Gentry,  87  Va.,  478,  decided  March 
5,  1891.  As  under  this  section  a  married  woman  may  dispose 
of  her  separate  estate,  make  contracts  in  respect  thereto,  and 
be  sued  on  them,  and  have  a  personal  judgment  rendered  and 
enforced  against  her  and  such  estate,  as  though  she  were  a 
feme  sole.  Held :  Specific  performance  of  her  contract  to  con- 
vey her  separate  estate  in  land  may  be  decreed. 


Citations  to  the  Code  of  Virginia.  187 

In  the  case  of  Yrrginia  Coal  and  Iron  Co.  vs.  liohei'son,  88 
Va.,  116,   decided  June   25,   1891.      Previous  to  act  of  April 

4,  1877,  specific  performance  of  a  married  woman's  contract 
could  not  be  enforced.  After  that  date,  and  previous  to  May 
1,  1888,  her  contract  could  only  be  specifically  enforced  as 
to  her  separate  estate,  and  while  her  husband  united  with  her. 
Since  the  date  last  named,  her  executory  contract  may  be  speci- 
fically enforced  under  the  rule  as  to  specific  performances  gene- 
rally. The  case  at  the  bar  was  as  follows :  In  1880,  husband 
and  wife  executed  a  deed  conveying  her  separate  estate  in  land. 
The  certificate  of  acknowledgment  was  defective  as  to  her.  The 
purchase-money  was  paid  and  possession  delivered.  Held : 
The  deed  constituted  a  contract,  whereof,  under  act  of  April  4, 
1876,  specific  performance  was  enforcible. 

Section  2289. 
In  the  case  of  Gentry  vs.  Gentry,  87  Va.,  478,  decided  March 

5,  1891.  As  under  this  section  a  married  woman  may  dispose 
of  her  separate  estate,  make  contracts  in  respect  thereto,  and 
be  sued  on  them,  and  have  a  personal  judgment  rendered  and 
enforced  against  her  and  such  estate,  as  though  she  were  a 
feme  sole.  Held :  Specific  performance  of  her  contract  to  con- 
vey her  separate  estate  in  land  may  be  decreed. 

Section  2297. 
In  the  case  of  Tate  vs.  Perkins,  85  Va.,  169,  decided  July  19, 
1888.  In  action  on  bond  by  a  married  woman  described  in  de- 
claration "  as  assignee  of  obligee,"  and  her  husband  described 
therein  "as  having  no  interest  in  siibject  matter,  but  joined  by 
way  of  conformity "  upon  demurrer.  Held :  Declaration  un- 
objectionable. 


k 


TITLE  XXIX. 

CHAPTER  CIV. 

Section  2304. 

In  the  case  of  Hunter  et  als.  vs.  Hall,  1  Call.,  206  (2d.  edition, 
178),  decided  April  20,  1798,  it  was  held:  A  reasonable  degree 
of  strictures  is  necessary  in  entries  for  land.  The  dismissal  of 
a  caveat,  unless  it  be  on  its  merits,  is  not  binding. 

In  the  case  of  Miller  y^.  Page,  6  Call.,  28,  decided  April,  1806, 
it  was  held  :  An  entry  in  these  words,  J.  M.  enters  one  thousand 
acres  "between  the  lines  of  H.  C,  deceased,  on  both  sides  of 
Hatcher's  creek  beginning  on  the  same,"  is  void  for  uncertainty. 

In  the  case  of  Lewis  et  als.  vs.  Billups  et  als.,  1  Leigh, 
353,    decided  June.    1829.      In  the   location  of   a   land   war- 


188  Citations  to  the  Code  of  Virginia. 

rant,  the  entry  calls  to  begin  at  three  marked  red  oaks,  and 
to  extend  down  for  quantity ;  these  three  oaks  are  on  the  head- 
waters of  a  stream  called  Popular  Fork;  the  survey  does  not 
extend  down  that  stream  for  quantity,  but  leaving  it  entirely, 
extends  down  the  general  course  of  tbe  country;  and  there  is 
evidence  that  the  call  of  the  entry  to  extend  down  for  quantity, 
in  the  usual  sense  of  that  phrase  in  locations,  required  the 
locator  to  extend  down  Popular  Fork  for  quantity.  Held :  The 
survey  is  naught  for  not  conforming  with  the  entry. 

In  the  case  of  McNeel  vs.  TIerold,  11  Grat.,  309,  decided  July, 
1854,  it  was  held:  An  entry  of  waste  and  unappropriated  land, 
to  be  valid,  must  call  for  objects  which  possess  that  notoriety 
in  themselves,  or  they  must  be  so  particularly  described  that 
other  persons,  by  using  due  care  and  reasonable  diligence,  may 
readily  find  them. 

The  general  or  descriptive  calls,  and  the  particular  or  loca- 
tive calls  of  the  entry,  must  possess  that  reasonable  degree  of 
certainty  which  will  put  a  subsequent  adventurer  duly  upon  his 
guard;  and  the  locative  calls  must  be  found  to  be  embraced 
within  the  descriptive  calls,  and  they  should  properly  be  con- 
sistent with  the  latter  and  with  one  another;  though  in  certain 
cases,  where  all  the  calls  of  an  entry  cannot  be  satisfied,  the 
courts,  for  the  purpose  of  sustaining  it,  will  reject  such  as  ap- 
pear vague  and  repugnant,  and  hold  to  those  appearing  to  be 
certain  and  consistent. 

Where  there  are  several  distinct  and  independent  calls  in  an 
entry,  it  is  not  necessary  that  all  the  objects  thus  called  for 
should  be  shown  and  recognized  by  the  public,  or  that  they 
should  be  described  with  that  speciality  that  a  subsequent  loca- 
tor can  readily  find  them ;  but  it  is  necessary  that  some  one  of 
the  leading  calls  should  be  thus  known,  or  so  described  that 
other  persons,  with  due  care  and  proper  diligence,  may  be  led 
to  ascertain  their  positions,  and  thus  distinguish  the  land  ap- 
propriated from  the  adjacent  residuum. 

The  objects  called  for  are  so  connected  with  the  general  his- 
tory or  geography  of  the  country,  or  its  legislation,  that  the 
courts  will  take  notice  of  them  and  they  will  be  deemed  of 
general  noteriety,  and  sufficiently  identified  without  further 
proof.  An  entry  call  for  such  objects  may  be  supported  with- 
out proof  of  notoriety  or  identity. 

When  the  objects  called  for  possess  but  a  local  notoriety,  the 
party  affirming  the  validity  of  the  entry  must  prove  the  identity 
of  the  land  intended  to  be  appropriated,  and  that  the  calls  of 
the  entry  are  such  that  a  subsequent  locator,  in  the  exercise  of 
proper  judgment  and  reasonable  diligence,  would  be  enabled  to 
distinguish  them  from  the  suiTounding  lands,  so  as  to  appropri- 
ate for  himself  the  adjacent  residuum. 


Citations  to  the  Code  of  Virginia.  189 

In  a  caveat^  where  the  objects  called  for  in  the  entry  are  not 
of  such  public  notoriety  as  that  the  courts  will  take  notice  of 
them,  a  special  verdict  must  find  that  the  objects  called  for 
have  a  real  existence,  and  are  such  as  are  required  to  make  it 
a  valid  entry ;  and  a  finding  defective  in  these  respects  will  not 
be  remedied  by  finding  that  the  survey  was  made  in  conformity 
with  the.  entry. 

Section  2321. 

In  the  case  of  Lewis  et  als.  vs.  Billups  et  als.,  1  Leigh,  353, 
decided  June,  1829,  it  was  held:  An  entry  calls  to  begin  one 
mile  above  a  marked  tree  and  a  rock  on  Big  Hurricane  Creek, 
eight  or  nine  miles  above  its  mouth ;  the  marked  tree  and  the 
rock  are  on  the  east  side  of  the  creek,  thirteen  miles  from  its 
mouth  by  the  meanders,  and  more  than  nine  miles  in  a  straight 
Hue ;  the  survey  of  this  entry  begins  at  a  point  on  the  west  side 
of  the  creek,  sixty-five  poles  from  the  stream,  and  one  mile  and 
eighty-four  poles  from  the  designated  tree  and  rock.  Held: 
1.  Tlie  entry  is  special  and  precise  enough.  2.  The  survey 
conforms  with  the  entry  with  reasonable  exactness,  esjjecially 
as  a  jury  had  so  found  shortly  after  the  survey,  upon  a  caveat 
to  which,  though  not  all,  yet  some  of  the  parties  now  contest- 
ing the  right  under  this  survey  were  parties. 

Section  2324. 

In  the  case  of  Preston  vs.  Bowen,  6  Munf.,  271,  decided  Feb- 
ruary 3,  1819,  it  was  held:  A  special  action  on  the  case  lies 
against  the  surveyor  of  a  county  for  fraudulently  refusing  to 
furnish  copies  of  surveys  when  lawfully  demanded,  and  thereby 
enabling  a  third  person  to  locate  the  lands  therein  described 
before  the  plaintiff.  It  is  a  part  of  the  official  duty  of  the  sur- 
veyor of  a  county  to  furnish  in  reasonable  time,  when  de- 
manded, copies  of  all  surveys  not  specially  excepted  in  the 
land  law. 

Where  the  declaration  declares  that  the  defendant,  contrary 
to  his  official  duty,  refused  to  furnish  copies  of  certain  surveys 
when  demanded  by  the  plaintiff,  if  the  defendant  be  excused  by 
any  provision  in  the  land  law  from  furnishing  the  copies  so  de- 
manded, he  ought  to  plead  it  specially. 

Section  2327. 

In  the  case  of  Wilcox  vs.  Calloway,  1  Wash.,  38  (2d.  edition, 
p.  50),  it  was  held :  The  effect  of  a  caveat  is  to  prevent  the  ema- 
nation of  a  grant,  not  to  set  one  aside. 

In  the  case  of  Curry  vs.  Martin,  3  Call,  28  (2d.  edition,  26), 
argued  May  11,  1801,  reargued  and  decided  act  29, 1802,  it  was 
held :  The  party  who  caveats  must  show  a  title  to  the  warrant 


190  Citations  to  the  Code  of  Virginia. 

under  which  his  own  survey  is  made.     The  reference  to  3  Call, 
69,  is  an  error. 

In  the  case  of  Stever  vs.  Gillis,  3  Call,  417  (2d.  edition,  361), 
decided  October  15,  1803.  G.  in  1770  surveyed  and  took  a 
patent  for  a  tract  of  one  himdred  and  sixty  acres  of  land,  the 
lines  of  which  were  all  surveyed,  except  two,  which  were  the 
lines  of  A.  H.,  under  a  former  patent,  and  which  formed  a  small 
angle  containing  twenty-six  acres.  These  two  lines  in  the  survey 
and  patent  of  G.  were  thus  described:  Thence  along  Andrew 
Henry's  lines  one  hundred  and  eighty-three  poles  to  the  begin- 
ning. Held :  The  survey  and  patent  are  good,  and  entitle  G.  to 
a  pre-emption  in  the  twenty-six  acres. 

In  the  case  of  Pt^eston  vs.  Harvey,  3  Call,  495  (2d.  edition,  427), 
decided  November  3,  1803,  it  was  held  :  The  time  of  the  return 
of  the  survey  into  the  office  is  the  period  from  whence  the  six 
months  are  to  be  calculated  for  entering  a  caveat,  in  such  case 
the  caveat  must  show  the  fact.  A  caveat  lies  to  an  inclusive 
survey,  though  there  be  no  certificate  from  the  county  court  that 
it  is  reasonable. 

In  the  case  of  Hamilton  vs.  Maize,  4  Call,  196,  decided  June, 
1791,  it  was  held:  A  party  who  can  caveat  ought  to  do  so;  but 
circumstances  may  excuse  it. 

In  the  case  of  Tanner's  Administrator  vs.  Saddler,  2  H.  &  M.^ 
370,  decided  April  28,  1808,  it  was  held :  A  patent  or  grant  for 
lands  may,  under  circumstances,  be  presumed  to  have  formerly 
issued,  of  which  circumstances  and  of  the  conclusion  to  be  drawn 
from  them,  it  is  the  province  of  the  jury  and  not  of  the  court  to 
judge.  In  this  case  the  circumstances  of  upwards  of  sixty  years' 
peaceable  and  uninterrupted  possession  in  the  caveator  and 
those  under  whom  he  claimed  together,  with  the  payment  of 
quit-rents  before  and  taxes  since  the  revolution,  was  considered 
as  sufficient  ground  for  such  presumption. 

In  the  case  of  Depew  vs.  Howard  et  ux,  1  Munf.,  293,  decided 
April  19,  1810,  it  was  held  :  In  cases  where  the  regular  remedy 
is  by  caveat^  a  court  of  equity  may  entertain  jurisdiction  under 
circumstances  which  renders  its  interposition  just  and  proper, 
but  such  circumstances  must  be  made  to  appear  to  the  satisfac- 
tion of  the  court. 

A  legal  title  to  land  ought  not  to  be  disturbed  in  favor  of  a 
party  not  having  a  superior  right  in  equity  to  the  identical  land 
in  question. 

In  the  case  of  Noland  vs.  Cromwell,  4  Munf.,  155,  decided 
January  26,  1814,  it  was  held  :  Although  a  party  may  be  let 
into  a  court  of  equity  on  grounds  which  he  could  not  have  used 
on  the  trial  of  a  caveat,  and  which,  in  fact,  make  another  case 
(in  reference  to  that  which  he  might  have  availed  himself  of  on 
such  trial),  or  upon  a  case  suggesting  and  proving  that  he  was 


Citations  to  the  Code  of  Yikginia.  191 

prevented  by  fraud  or  accident  from  prosecuting  his  caveat,  he 
is  not  to  be  sustained  in  the  court  of  equity  on  such  grounds  as 
were  or  might  have  been  brought  forward  on  the  trial  of  the 
caveat. 

In  the  case  of  Christiari  s  Devisee  vs.  Christian  et  als.,  6  Munf., 
534,  decided  March  18,  1820,  it  was  held :  The  general  princi- 
ple laid  down  in  the  case  of  Noland  vs.  Cromwell,  4  Munf.,  155, 
does  not  apply  to  a  case  in  which  the  rights  of  the  parties  can- 
not be  adjudicated  in  the  court  of  caveat,  but  the  aid  of  a  court 
of  equity  is  necessary  to  give  each  his  proper  share  of  the  land 
for  which  one  has  improperly  obtained  a  patent. 

In  the  case  of  Lyne  vs.  Jackson  and  Lyne  vs.  Wihon^  1  Rand., 
114,  decided  April,  1822,  it  was  held  :  Where  a  party  applies  to 
a  court  of  chancery  to  prevent  the  issuing  of  a  patent  or  an 
assignment  of  a  survey,  and  alleges  a  fraud  committed  by  the 
defendant  in  forging  an  agreement  between  him  and  the  com- 
plainant, the  court  of  chancery  has  jurisdiction  without  the 
party  resorting  to  a  caveat  in  the  first  instance.  During  the 
pendency  of  such  suit  no  person  can  obtain  a  patent  for  the 
same  land  under  a  treasury  warrant  located  since  the  institu- 
tion of  the  suit,  but  he  will  be  regarded  as  a  purchaser  with 
notice. 

In  the  case  of  Mc  Clung  vs.  Hughes,  5  Randolph,  453,  de- 
cided June,  1827,  it  was  held :  After  a  grant  issued,  any  one 
claiming  a  prior  equity  against  the  grantee,  can  in  no  case  have 
relief  in  equity,  unless  upon  the  ground  of  actual  fraud  in  the 
acquisition  of  the  legal  title,  or  unless  the  party  was  prevented 
from  prosecuting  a  caveat  by  fraud,  accident,  or  mistake. 

In  the  case  of  Jackson  vs.  McGavock,  5  Rand.,  509,  decided 
June,  1827,  the  decision  in  McClung  vs.  Hughes,  5  Rand.,  453, 
cited  s^ipra,  was  affirmed  and  followed. 

In  the  case  of  Hardrnan  vs.  Boardm,an,  4  Leigh,  377,  decided 
April,  1833.  Upon  the  construction  of  the  38th  section  of  the 
general  law,  1  Rev.  Code,  Chapter  86.  Held:  That  a  person 
holding  a  perfect  legal  title  to  lands  by  grant  from  the  Com- 
monwealth, may  maintain  a  caveat  to  prevent  the  issuing  of  a 
junior  grant  to  another  person. 

In  the  case  of  Vonnell  cfc  Preston  vs.  King's  Heirs  and 
Devisees,  7  Leigh,  393,  decided  March,  1836.  Entry  of  land 
by  A.  in  1783,  patent  in  1800.  Survey  of  same  land  by  B.  in 
1790,  without  any  entry  thereof  made  by  him,  and  patent  to  B. 
in  1793.  A.  in  1815  brings  scire  facias  in  chancery  against  B. 
to  repeal  his  patent.  Quwre :  Whether  equity  will  entertain  the 
suit,  A.  having  failed  to  caveat,  and  there  being  no  proof  that  B. 
had  actual  notice  of  A.'s  entry? 

In  the  case  of  Wilsons  Heirs  vs.  Daggs,  8  Leigh,  681,  decided 
August,  1837.    After  the  dismission  of  a  caveat  upon  the  merits, 


192  Citations  to  the  Code  of  Yirginia. 

the  caveatee  files  in  the  land  office  a  copy  of  the  judgment,  and 
obtains  a  patent.  A  supersedeas  being  awarded  to  the  judgment, 
the  patent  is  relied  on  as  a  bar.  Held  :  Notwithstanding  the 
emanation  of  the  patent,  the  court  may  examine  into  the  cor- 
rectness of  the  judgment;  but  if  the  same  be  reversed,  then  a 
dismission  will  be  without  prejudice  to  any  proceeding  which 
may  be  instituted  to  vacate  the  patent. 

A  caveator,  whose  survey  had  not  been  made  twelve  months 
before  he  entered  his  caveat,  will  not  have  judgment  rendered 
against  him  merely  because  the  twelve  months  allowed  for  re- 
turning the  plat  and  certificate  of  survey  into  the  land  office 
have  elapsed  pending  the  caveat. 

In  the  case  of  Warwick  and  Wife  and  Another  vs.  Norvell,  1 
Eob.,  308  (2d  edition),  326.  The  statute  of  May,  1779,  Chapter  13, 
giving  the  remedy  by  caveat  for  determining  the  right  to  waste  and 
unappropriated  lands,  did  not  extend  to  lands  which,  having 
been  once  granted  by  patent,  had  afterwards  lapsed  and  become 
forfeited  to  the  State. 

In  the  case  oiWalton  vs.  Hale,  9  Grat.,  194,  decided  August 
16,  1852,  it  was  held :  In  a  case  of  caveat,  the  caveat  rests  upon 
the  ground  of  the  better  right  in  the  caveator  to  the  land  sur- 
veyed. Unless  he  can  show  such  better  right,  the  caveator  is 
entitled  to  the  judgment,  though  it  might  appear  that  as  against 
a  party  showing  a  right,  his  entry  and  survey  were  defective. 

Queers:  If  a  tenant  in  common  of  an  undivided  interest  in 
land  may  not  maintain  a  caveat  against  the  issuing  of  a  grant 
to  a  third  person,  upon  a  survey  of  part  of  the  land  embraced 
within  the  limits  of  the  grant  in  which  he  holds  an  undivided 
interest? 

In  the  case  of  Harper  <&  Western  vs.  Baugli  tSs  Seguine,  9 
Grat.,  508,  decided  November  17, 1852,  it  was  held  :  In  a  caveat 
the  caveator  must  show  the  better  title  to  the  land  in  controversy 
to  be  in  him.  He  cannot  recover  upon  the  ground  of  the  weak- 
ness of  his  adversary's  title.  The  caveator  must  state  in  his 
caveat  the  grounds  on  which  he  claims  the  better  right  to  the 
land  in  controversy,  and  he  will  not  be  permitted  to  abandon 
on  the  trial  the  right  which  he  has  set  out  in  his  caveat  as  that 
under  which  he  claims,  and  prove  a  different  right. 

In  the  case  of  McNeel  vs.  Herold,  11  Grat.,  309,  decided  July, 
1854,  it  was  held :  In  a  caveat,  where  the  objects  called  for  in 
the  entry  are  not  of  such  public  notoriety  as  that  the  courts  will 
take  notice  of  it,  a  special  verdict  must  find  that  the  objects 
called  for  have  a  real  existence,  and  are  such  as  are  required  to 
make  it  a  valid  entry ;  and  a  finding  defective  in  these  respects 
will  not  be  remedied  by  finding  that  the  survey  was  made  in 
conformity  with  the  entry.  A  party  who  files  a  caveat  must 
show  a  title  to  the  warrant  under  which  his  own  entry  and 


Citations  to  the  Code  of  Virginia.  193 

survey  were  made ;  and  if  he  fails  to  do  so,  his  caveat  will  be 
dismissed. 

In  the  case  of  Hamilton  vs.  McNiel  et  als.,  13  Grat.,  389,  de- 
cided July  28, 1856,  it  was  held :  In  a  case  of  caveat  all  the  facts 
agreed  by  the  parties  or  found  by  the  jury,  or  if  a  jury  is  dis- 
pensed with,  ascertained  by  the  court,  necessarily  become,  and 
should  be  made  a  part  of  the  record  of  the  cause.  In  a  case  of 
caveat,  if  the  court  shall  certify  the  evidence  instead  of  the  facts, 
yet  if  there  is  no  conflict  in  the  parol  evidence,  and  taking  the 
whole  as  true,  the  appellate  court  may  proceed  safely  to  judg- 
ment upon  the  same,  it  is  the  duty  of  such  court  to  proceed  and 
give  judgment  according  to  the  very  right  of  the  case. 

In  a  case  of  caveat  where  a  jury  is  dispensed  with,  and  the 
whole  cause  is  submitted  to  the  court,  it  is  not  necessary  for  the 
loosing  party  to  file  a  bill  of  exceptions  to  the  judgment  of  the 
court,  or  to  move  for  a  new  trial,  and  if  it  is  refused  to  except 
to  the  opinion  of  the  court  refusing  it;  but  it  is  sufficient 
that  the  circuit  court  shall  make  the  facts  agreed  and  ascer- 
tained, or  the  evidence,  where  the  parol  evidence  is  in  no  re- 
spect conflicting,  a  part  of  the  record  by  its  order  to  that  effect 
upon  rendering  judgment. 

In  a  case  of  caveat  upon  a  question  involving  the  boundary 
line  between  two  counties,  the  courts,  in  construing  the  acts  in 
relation  to  their  boundaries,  may  look  to  the  acts  forming  other 
counties,  both  before  and  subsequent,  for  the  purpose  of  ascer- 
taining the  intention  of  the  legislature  as  to  said  boundary  line. 

In  the  case  of  Clements  vs.  Kyles,  13  Grat.,  468,  decided  Au- 
gust 29,  1856,  it  was  held :  In  a  case  of  caveat  the  caveator 
should  state  in  his  caveat  the  grounds  on  which  he  claims  to 
have  the  better  right  to  the  land  in  controversy ;  and  if  this  is 
not  done,  the  caveatee  may  either  move  the  court  to  dismiss  the 
caveat,  or  to  require  the  caveator  to  file  a  specification  of  the 
alleged  better  right  on  which  his  claim  is  founded.  But  after 
the  jury  is  sworn  to  ascertain  the  facts,  it  is  then  too  late  to  ob- 
ject to  the  form  of  the  caveat.  * 

In  a  case  of  caveat  the  caveator  claims  under  a  patent  issued 
to  W.  in  1756,  which  does  not  refer  to  any  survey.  In  order  to 
show  that  the  patent  was  founded  on  a  survey  the  caveator 
offers  in  evidence  a  copy  from  the  books  of  the  surveyor  of  Au- 
gusta county  of  a  certificate  of  a  survey  and  plat  made  for  W., 
dated  in  November,  1749.  The  certificate  itself  does  not  con- 
tain the  calls  for  course  and  distance  or  other  marks,  but  these 
are  given  on  the  plat,  and  they  agreed  with  the  grant  in  its  gen- 
eral and  locative  calls.  It  is  competent  evidence  for  the  pur- 
pose for  whicli  it  is  offered. 

To  prove  the  boundaries  of  W.'s  patent,  the  caveators  offer 
the  deposition  of  a  witness  who  had  purchased  a  part  of  the 
13 


194  Citations  to  the  Code  of  Vibginia. 

land  included  in  that  patent  from  a  party  claiming  under  it,  but 
not  any  part  of  the  land  claimed  by  the  caveators.  The  witness 
then  had  a  controversy  with  a  third  person,  in  which  it  was  im- 
portant to  him  to  establish  the  boundaries  of  said  patent.  The 
deposition  had  been  taken  in  a  caveat  between  the  ancestor  of 
the  caveators  and  the  same  caveatees  in  relation  to  the  same 
land,  in  which  the  said  caveator  had  suffered  a  non-suit.  Held : 
He  is  a  competent  %vitness.  The  deposition  is  competent  testi- 
mony. The  statement  of  a  person  living  on  the  land  at  the  time, 
made  many  years  before  the  trial,  at  which  time  he  was  dead, 
pointing  out  to  the  witness  two  of  the  corners  called  for  in  W.'s 
patent,  is  not  competent  evidence,  he  not  having  been  the  sur- 
veyor or  chain-carrier  at  the  making  of  the  survey,  or  owner  of 
that  or  adjoining  lands  calling  for  the  same  boundaries,  or  hav- 
ing any  motive  or  interest  to  inquire  or  ascertain  the  facts. 
Surveys  made  many  years  after  W.'s  survey,  and  by  a  different 
surveyor,  are  not  competent  evidence  as  to  the  boundaries  of 
W.'s  survey.  Three  or  four  corners  of  a  large  survey  are  ascer- 
tained, but  between  these  ascertained  corners  the  patent  calls 
for  several  lines  and  courses.  In  fixing  the  boundaries  of  the 
land,  the  hnes  calling  for  these  ascertained  corners  must  be  run 
thereto,  though  this  may  require  a  variation  of  both  course  and 
distance ;  but  when  a  corner  is  called  for  which  is  not  found, 
the  course  and  distance  called  for  in  the  patent  must  govern, 
and  an  average  allowance  of  variation  in  each  course  and  line 
called  for  between  the  ascertained  corners  is  not  to  be  made. 

The  land  in  controversy,  lying  in  the  western  part  of  a  large 
survey,  it  is  error  to  instruct  the  jury  that  if  they  are  satisfied 
certain  specified  corners  of  the  survey  are  established,  and  the 
courses  of  the  patent  between  these  corners  are  correctly  laid 
down  upon  the  plot  of  the  survey  made  in  the  cause,  it  is  all 
that  is  necessary  for  them  to  ascertain  in  this  suit,  as  it  is  that 
portion  of  said  patent  that  the  survey  of  the  caveatees  lies,  as 
appears  by  the  plat,  and  it  is  only  to  that  portion  that  they  have 
set  up  titld. 

The  wlQ  of  W.  having  been  made  in  1746,  before  the  survey  or 
patent  to  him,  the  land  embraced  in  said  patent  did  not  pass  by 
his  win  to  Mrs.  W.,  but  descended  to  his  heir  at  law. 

In  the  case  of  Carter  vs.  Uamey,  15  Grat.,  346,  decided  July, 
1859,  it  was  held :  The  entry  and  the  survey  of  both  the  caveator 
and  the  caveatee  being  upon  land  which  was  previously  granted  by 
the  Commonwealth,  and  which  had  never  been  forfeited,  the  Com- 
monwealth having  no  interest  in  the  land  which  could  be  vested 
in  the  caveator,  he  can  have  no  right  to  it,  and  therefore  cannot 
maintain  a  caveat,  though  the  caveatee  may  have  no  better  right. 

In  the  case  of  Troter  et  als.  vs.  Newton  et  als.,  30  Grat.,  582, 
decided  September,  1877.     In  a  case  of  caveat  founded  on  the 


Citations  to  the  Code  of  Virginia.  195 

alleged  better  right  of  the  caveator  io  the  land  in  controversy,  the 
first  inquiry  is  as  to  the  title  or  interest  in  the  subject.  The 
caveator  cannot  recover  upon  the  mere  infirmity  of  the  title  of 
the  caveatee,  for  however  defective  that  may  be,  no  one  has  a  right 
to  interpose  for  the  purpose  of  preventing  him  from  carrying  his 
entry  into  grant,  unless  he  has  a  better  right,  legal  or  equitable 
in  himself. 

The  caveator  must  state  in  his  caveat  the  grounds  on  which 
he  claims  the  better  right  to  the  land  in  controversy,  and  he  will 
not  be  permitted  to  abandon  on  the  trial  the  right  which  he  has 
set  out  in  his  caveat,  as  that  under  which  he  claims,  and  prove  a 
different  right. 

In  February,  1796,  D.  obtained  a  grant  for  four  thousand  six 
hundred  and  sixty  acres  of  waste  mountain  land,  the  grant  show- 
ing that  there  was  excluded  from  the  grant  forty-seven  and  one- 
half  acres  of  prior  claims  of  F.  In  1854,  T.  bought  D.'s  land 
at  a  judicial  sale.  In  1873,  N.  laid  a  warrant  on  the  forty-seven 
and  one-half  acres,  and  applied  for  a  grant,  and  stated  as  the 
grounds  of  his  claim,  among  others,  (1st),  That  F.  had  entered 
and  surveyed  the  land,  and  it  did  not  appear  that  his  right  had 
ever  been  forfeited;  and  (2d),  That  T.  had  been  in  possession 
of  the  land  under  the  color  of  title  for  more  than  twenty  years, 
paying  taxes  upon  it.  Held:  T.  cannot  set  up  title  in  F.  to 
defeat  the  caveatee,  but  must  show  a  better  right  in  himself. 

As.  T.  only  purchased  the  land  of  D.,  which  did  not  include 
the  land  in  controversy,  and  does  not  connect  himself  with  the 
right  of  F.,  he  must  show  an  exclusive,  actual  and  continued 
possession  under  a  colorable  claim  of  title  for  the  period  re- 
quired by  the  statute  to  ripen  his  possession  into  a  valid  title. 

The  whole  tract  being  waste  mountain  land,  and  the  evidence 
not  showing  any  continued  possession  of  the  land  in  contro- 
versy, T.  cannot  maintain  his  caveat. 

In  the  petition  for  an  appeal,  T.  states  that  he  had  located 
a  warrant  on  the  land  in  controversy,  and  claims  that  he  is  pro- 
tected by  the  provisions  of  Section  14,  Chapter  108,  Code  of 
1873.  Held :  That  the  statute  only  applies  to  a  party  who  has 
actual  possession  and  claim  which  T.  did  not  have.  The  claim 
not  having  been  made  in  the  court  below,  cannot  be  considered 
in  the  appellate  court.  This  ground  of  claim  not  having  been 
stated  in  the  caveat,  cannot  afterwards  be  set  up. 

In  the  case  of  Carter  vs.  Ilagan,  75  Ya.,  557,  decided  August 
11,  1881,  it  was  held :  A  patent  is  the  consummation  of  the 
legal  title,  and  passes  to  the  grantee  the  legal  estate  and  seisin 
of  the  Commonwealth.  Accordingly  where  a  patent  contains  a 
reservation  in  favor  of  a  prior  claimant,  who  relies  only  on  his 
entry  and  survey,  and  under  these  circumstances,  a  patent,  in- 
cluding the  land  so  claimed,  and  without  a  reservation,  is  issued 


196  Citations  to  the  Code  of  Virginia. 

to  a  junior  patentee,  the  latter  acquires  the  legal  title,  and  must 
prevail  in  a  court  of  law  over  such  prior  claimant,  whatever  may 
be  the  date  of  his  survey. 

A  party  claiming  under  such  prior  survey  must  resort  to  his 
caveat  to  prevent  the  emanation  of  a  grant  to  his  adversary,  and 
if  he  fails  in  that,  without  sufficient  excuse,  he  is  without  rem- 
edy, unless  by  some  proceeding  in  equity,  having  for  its  object 
the  annulment  of  the  patent  upon  equitable  grounds. 

Where  a  patent  contains  a  reservation,  the  title  and  seisin  of 
the  land  so  reserved  does  not  pass  to  the  patentee,  but  remains 
in  the  Commonwealth. 

Section  2336. 
See  the  case  of  Hunter  et  als.  vs.  Hall,  1  Call,  206,  (2d  edi- 
tion, 178),  see  Section  2304. 

Section  2338. 

The  reference  to  8  Leigh,  681,  is  an  error.  The  case  does 
not  apply. 

Section  2339. 

In  the  case  of  French  (&  Brow7i  vs.  Commojucealth,  5  Leigh, 
512,  decided  December,  1834,  it  was  held  :  This  section  has  no 
application  to  escheated  lands. 

In  the  case  of  Tichanel  vs.  Boe,  2  Rob.,  288,  decided  August, 
1843.  In  1796  a  person  settled  upon,  cleared  and  improved  a 
tract  of  land.  In  1806  he  conveyed  a  part  of  it  by  metes  and 
bounds,  and  in  1834  the  land  embraced  in  this  conveyance  was 
granted  by  the  Commonwealth,  in  conformity  with  a  survey 
made  in  1833.  It  appearing  that  the  tenant  claiming  under  the 
deed  of  1806  had  entered  upon,  settled  and  improved  the  land 
conveyed  by  this  deed,  and  had,  during  the  period  he  held  it, 
paid  the  taxes  thereon,  and  that  a  portion  of  this  land  was  ac- 
tually enclosed  in  1796,  when  the  tract  of  which  it  then  formed 
a  part  was  settled,  held  :  It  is  competent  for  the  tenant  to  con- 
nect his  possession  with  the  possession  of  those  under  whom  he 
claims  (the  same  having  never  been  interrupted),  and  ifc  thus  ap- 
pearing that  the  location  on  which  the  Commonwealth's  grant 
was  founded  was  on  lands  which  had  been  settled  thirty  years 
prior  to  the  date  of  the  location,  and  upon  which  taxes  had  been 
paid  within  that  time,  held,  further,  that  the  location  was  in- 
vahd,  and  that  no  title  passed  by  the  Commonwealth's  grant. 

In  the  case  of  Matthews  vs.  Burton,  17  Grat.,  312,  decided 
February  14,  1867,  it  was  held :  In  eastern  Virginia,  a  party  in 
possession  of  land,  tracing  back  his  title  for  upwards  of  seventy 
years,  it  is  a  presumption  of  law,  that  a  grant  has  issued  for 
the  land,  and  it  is  not,  therefore,  subject  to  entry  and  grant  as 
waste  and  unappropriated. 


Citations  to  the  Code  of  Virginia.  197 

Section  2340. 

In  the  case  of  Nichols  et  als.  vs.  Covey  <&c.,  4  Eand.,  365,  de- 
cided June,  1826,  it  was  held :  Where  a  patent  is  issued  in  pur- 
suance of  the  act  of  1788,  which  includes,  in  its  general  courses, 
a  prior  claim,  it  does  not  pass  to  the  patentee  the  title  of  the 
Commonwealth  in  and  to  the  other  lands  covered  by  such  prior 
claim,  subject  only  to  the  title  whatever  it  may  be  in  the  prior 
claimant ;  but,  if  that  title  is  only  a  prior  entry,  and  becomes 
vacated  by  neglect  to  survey  and  return  the  plat,  any  one  may 
lay  a  warrant  on  the  same,  as  in  other  cases  of  vacant  and  un- 
appropriated lands. 

In  the  case  of  Carter  vs.  Ilagan,  75  Va.,  557,  decided  August 
11,  1881,  it  was  held :  A  party  claiming  under  such  prior  survey 
must  resort  to  his  caveat  to  prevent  the  emanation  of  a  grant 
to  his  adversary,  and  if  he  fails  in  that,  without  sufficient  excuse, 
he  is  without  remedy,  unless  by  some  proceeding  in  equity, 
having  for  its  object  the  annulment  of  the  patent  upon  equitable 
grounds. 

Section  2344. 

In  the  case  of  ITorrison  vs.  Campbell  et  als.,  2  Rand.,  206,  de- 
cided January,  1824,  it  w^as  held:  An  inchoate  right  to  land, 
held  by  entry  and  survey  only,  is  real  estate,  and  will  descend 
to  the  heirs,  and  not  the  executors,  warrants  and  surveys  of  land 
may  be  assigned  but  not  entries. 

In  the  case  of  Nichols  et  als.  vs.  Covey,  etc.,  4  Rand.,  365,  de- 
cided June,  1 826,  it  was  held :  The  purchase  of  a  warrant  from 
the  Commonwealth,  and  an  entry  in  consequence  thereof,  is  not 
a  purchase  of  the  land  itself,  until  the  entry  is  carried  into  grant. 

Section  2349. 

In  the  case  of  Blankenpickler  vs.  AndersorH s  Heirs,  16  Grat., 
59,  decided  August  21,  1860,  it  was  held :  If  the  grantee  in  a 
patent  for  land  was  dead  at  the  time  the  grant  issued,  the  patent 
is  void ;  and  this  may  be  shown  on  a  trial  in  ejectment  in  which 
one  party  claims  under  the  grant. 

In  the  case  of  Carter  vs.  Ilagan,  75  Va.,  557,  decided  August 
11,  1881,  it  was  held :  A  patent  is  the  consummation  of  the  legal 
title,  and  passes  to  the  grantee  the  legal  estate  and  seisin  of  the 
Commonwealth.  Accordingly,  where  a  patent  contains  a  reser- 
vation in  favor  of  a  prior  claimant  who  relies  only  on  his  entry 
and  survey,  and  under  these  circumstances,  a  patent  claiming 
the  land  so  claimed  and  without  a  reservation  is  issued  to  a 
junior  patentee,  the  latter  acquires  the  legal  title,  and  must  pre- 
vail in  a  court  of  law  over  such  prior  claimant,  whatever  may 
be  the  date  of  his  survey. 

A  party  claiming  under  such  prior  survey  must  resort  to  his 
caveat   to  prevent  the  emanation  of  a  grant  to  his  adversary, 


198  Citations  to  the  Code  of  Virginia. 

and  if  he  fails  in  that,  without  sufficient  excuse,  he  is  without 
remedy,  unless  by  some  proceeding  in  equity,  having  for  its 
object  the  annulment  of  the  patent  upon  equitable  grounds. 
Where  a  patent  contains  a  reservation,  the  title  and  siesin  of 
the  land  so  reserved  does  not  pass  to  the  patentee,  but  remains 
in  the  Commonwealth. 

Section  2351. 
In  the  case  of  BlankenpicMer  vs.  Andersoris  Heirs,  16  Grat., 
59,  decided  August  21,  1860,  it  was  held :  If  the  grantee  in  a 
patent  for  land  was  dead  at  the  time  the  grant  issued,  the  patent 
is  void ;  and  this  may  be  shown  on  a  trial  in  ejectment  in  which 
one  party  claims  under  the  patent. 

Section  2357.       • 

In  the  case  of  Preston  vs.  Harvey,  3  Call,  495  (2d.  edition, 
427),  decided  November  2,  1803,  it  was  held :  The  Act  of  As- 
sembly, concerning  inclusive  surveys,  does  not  extend  to  lands 
held  by  entry  only. 

In  the  case  of  Preston  vs.  Harvey,  2  H.  &  M.,  55,  decided 
March  4, 1808,  it  was  held :  An  inclusive  survey  cannot  lawfully 
be  made  of  lands  held  by  entry  only.  A  judgment  on  a  caveat 
that  no  grant  shall  issue  to  a  caveatee  on  his  inclusive  survey, 
where  it  appears  that  he  has  any  other  claim  or  survey  by 
which  he  may  possibly  hold  part  of  the  land,  ought  to  be  so 
worded  as  not  to  affect  his  right  under  such  claim  or  survey. 

In  such  case  the  judgment  ought  not  to  be  that  no  grant  issue 
to  the  caveatee  for  the  land  mentioned  and  described  in  his  in- 
clusive survey,  caveated,  etc.,  but  "that  no  grant  issue  to  him  in 
pursuance  of  his  inclusive  survey  made  under  the  order  of  the 
court  granting  him  leave  to  comprehend  in  one  survey  his  sev- 
eral adjoining  claims." 

Section  2360. 

In  the  case  of  Jones  vs.  Jones,  1  Call,  458  (2d  edition,  396), 
decided  November  3,  1798,  it  was  held:  Inclusive  patent  to 
three  creates  a  joint  tenancy. 

A  father  and  three  sons  obtained  separate  patents  for  four 
hundred  acres  of  land  each,  adjoining  one  another,  and  the 
father  obtains  a  patent  for  another  tract  of  four  hundred  acres ; 
afterwards  the  three  take  one  inclusive  patent  for  all  these 
tracts  and  another  tract  of  one  thousand  one  hundred  and 
sitxy-two  acres.  This  destroys  the  separate  estates  in  the  fii-st 
three  tracts,  and  creates  a  joint  tenancy  in  the  whole  two  thou- 
sand seven  hundred  and  sixty-two  acres  comprised  in  the  patent. 

Section  2368. 
In  the  case  of  HamUeton  vs.  Wells,  4  Call,  213,  decided  June, 
1791,  it  was  held :    In  ejectment  it  is  competent  to  the  defendant 


Citations  to  the  Code  op  Virginia.  199 

to  give  in  evidence  that  the  patent  under  which  the  plaintiff 
claims  was  obtained  contrary  to  law,  although  upon  the  face  it 
appears  to  have  been  regularly  issued. 

In  the  case  of  White  vs.  Jones,  4  Call,  253,  decided  October, 
1792,  it  was  held :  A  court  of  law  can  avoid  a  patent  for  fraud 
in  obtaining  it,  but  neither  a  court  of  equity  nor  a  court  of  law 
can  afford  relief  unless  the  fraud  be  proved. 

In  the  case  of  Alexander  vs.  Greenup,  1  Munf.,  135,  decided 
April,  1810,  it  was  held:  A  patent  from  the  Commonwealth, 
containing  a  recital  "  that  the  land  was  escheated  from  a  certain 
J.  M.,  dec'd,"  and  granting  the  same  "by  virtue  of  an  entry 
made  in  the  office  of  the  late  lord  proprietor  of  the  Northern 
Neck,  and  in  consideration  of  the  ancient  composition  of  one 
pound,  five  shillings,  sterling,  paid  by  the  grantee  into  the 
treasury,"  is  illegal  and  void,  and  not  to  be  received  as  evi- 
dence of  title  on  the  general  issue  in  ejectment 

The  Commonwealth,  under  existing  laws,  cannot  grant  escheat- 
ed lands  without  a  previous  inquest  of  office,  and  then  not  (as 
waste  and  unappropriated  lands)  upon  entry  and  surveys,  but 
upon  sales  by  the  escheators.  A  patent  may  be  declared  void 
for  defects  apparent  on  its  face,  without  the  necessity  of  resort- 
ing to  a  scire  facias  to  repeal  it. 

In  the  case  of  Witherinton  vs.  McDonald,  1  H.  &  M.,  306, 
decided  June  10,  1807,  it  was  held :  In  an  action  of  ejectment, 
evidence  cannot  be  introduced  to  prove  that  a  patent  was  irregu- 
larly obtained.  Quoere :  Whether  in  such  case  evidence  is  ad- 
missible that  a  patent  was  obtained  by  fraud? 

The  reference  to  6  Munf.,  308,  is  an  error. 

In  the  case  of  Morrison  vs.  Campbell  et  als.,  2  Rand.,  206,  de- 
cided January,  1824,  it  was  held :  A  man  deriving  title  under  a 
forged  assignment  of  an  entry,  and  who  afterwards  obtains  a 
legal  title  from  the  Commonwealth,  ought  not  to  be  preferred  to 
one  who  holds  a  regular  assignment  of  a  survey  of  the  same 
lands. 

In  the  case  of  Warwick  and  Wife,  and  Another  vs.  Norvell,  1 
Rob.,  308  (2d  edition,  326).  Land  which  had  been  patented  in 
1755,  being  adjudged  in  1774,  upon  petition  to  the  general 
court  to  be  forfeited  and  revested  in  the  crown,  was,  in  1797, 
granted  anew  by  patent  to  the  holder  of  a  land  office  treasury 
warrant  as  waste  and  unappropriated  land.  Held  by  the  court 
of  appeals  (following  the  decision  in  Whitiington^  etc.,  vs.  Chris- 
tian, etc.,  2  Rand).,  that  the  patent  of  1797  was  void. 

In  the  case  of  Blankenpickler  vs.  Anderson's  Heirs,  16  Grat., 
59,  decided  August  21,  1860,  it  was  held,  page  62  :  If  the 
grantee  in  a  patent  for  land  was  dead  at  the  time  the  grant  is- 
sued, the  patent  is  void ;  and  this  may  be  shown  in  an  action  of 
ejectment  in  which  one  party  claims  under  the  patent. 


200  Citations  to  the  Code  of  Yirginia. 

lu  the  case  of  Garrison  vs.  Hall  et  ah.,  75  Va,,  150,  decided 
January  13,  1881,  it  was  lield,  page  164  :  A  party  claiming  title 
to  land  to  which  he  has  the  legal  title  of  one-third  and  an 
equitable  title  to  the  other  two-thirds,  may  go  into  equity  to  re- 
strain waste  upon  the  land,  and  to  set  aside  a  conveyance  from 
the  board  of  public  works  of  Virginia  to  a  purchaser  of  the  land, 
the  same  having  been  previously  legally  granted  by  a  valid 
grant. 

CHAPTER    CV. 

Section  2375. 

For  27  Grat.,  291,  see  Section  2398. 

Section  2376. 

In  the  case  of  Bennett  vs.  The  Commonwealth,  2  Washington, 
199  (1st  edition,  page  154),  decided  at  October  term,  1795,  it  was 
held :  Upon  an  inquest  of  office  respecting  property  escheated 
or  forfeited  to  the  Commonwealth,  the  jury  might  have  been 
composed  of  twelve  jurors,  or  of  a  greater  or  smaller  number, 
prior  to  the  act  of  1794. 

In  the  case  of  Dunlop  vs.  Comm^onwealth,  2  Call,  284  (2d  edi- 
tion, 240),  decided  April  30,  1800.  The  question  was  raised, 
whether  an  inquisition  finding  an  escheat  for  want  of  heirs 
must  say  in  express  words  that  the  deceased  died  without  issue, 
but  as  the  motion  to  quash  was  made  by  an  amicus  curia,  the 
above  point  was  not  decided.  It  was  held  :  An  am,icus  curia 
cannot  move  to  quash  an  inquisition  of  escheat  unless  he  either 
has  an  interest  himself  or  represents  somebody  who  has.  An 
amicus  curia  cannot  appeal. 

Section  2378. 

As  to  case  cited,  2  Call,  284,  see  Section  2376  supra. 

Section  2379. 

In  the  case  of  French  &  Brown  vs.  The  Commonwealth,  5  Leigh, 
512,  decided  December,  1834,  it  was  held :  In  a  monstrans  de 
droit  to  an  inquisition  of  escheat,  prosecuted  under  this  section, 
the  monstrant  is  plaintiff. 

The  monstrant  must  show  good  title  in  himself  in  order  to  en- 
title him  to  judgment  of  amoveas  manus  against  the  Common- 
wealth. 

Section  2388. 

In  the  case  of  Fiottet  als.  vs.  The  Commonwealth,  12  Grat.,  564, 
decided  September  7,  1855,  it  was  held :  A  subject  and  citizen 
of  Great  Britain  purchased  land  in  Virginia  in  1793,  and  he 
lived  until  1818.  By  the  treaty  of  1794  betweea  Great  Britain 
and  the  United  States,  he  was  entitled  to  hold  the  land,  and  no 


Citations  to  the  Code  of  Virginia.  201 

proceedings  having  been  instituted  during  the  war  of  1812  to 
escheat  it,  that  war  did  not  divest  his  rights,  but  the  land  de- 
scended on  his  death  to  his  heirs. 

In  a  case  of  escheat  between  the  heirs  of  the  alien  and  the 
Commonwealth,  both  parties  claiming  under  the  same  person, 
and  the  inquisition  referring  to  a  deed  to  the  alien  for  the  land, 
as  recorded  in  the  county  of  K.,  an  office  copy  of  said  deed  is 
evidence  for  the  heirs,  though  it  was  not  recorded  upon  proper 
proof. 

In  the  case  of  Ilatcenstein  vs.  Lynham,  [Escheator),  28  Grat., 
62,  decided  January,  1877.  H.,  of  foreign  birth,  iaought  real 
estate  in  1856  and  1859,  and  died  in  1861,  seised  thereof  without 
known  heirs.  The  said  real  estate  was  escheated  to  the  Com- 
monwealth, and  in  May,  1876,  persons,  natives  of  and  living  in 
Switzerland,  instituted  proceedings  for  the  recovery  of  the  real 
estate.  Held :  The  law  as  it  was  at  the  death  of  H.  must  govern 
the  case,  and  under  the  act  of  April  7,  1858,  Session,  Acts  of 
1857-'58,  Chapter  42,  Section  44,  Code  of  1860,  Chapter  115,  p. 
557,  persons,  natives  of  another  country,  and  living  there,  are 
not  entitled  to  the  real  estate.  The  treaty  of  November,  1855, 
between  the  United  States  and  the  Republic  of  Switzerland,  11 
U.  S.  Statute  at  large,  p.  590,  Article  5,  Clause  3,  by  its  terms 
depends  for  its  operation  and  effect  upon  the  legislature  of  the 
State  in  which  the  real  estate  lies,  and  no  right  in  real  estate  in 
Virginia  will  vest  in  a  citizen  of  that  republic  under  said  treaty, 
there  having  been,  at  the  death  of  H.,  no  statute  authorizing  it. 

In  the  case  of  Ilaxienstein  vs.  Lynham,  100  U.  S.  S.  C.  Re- 
poi-ts,  483,  decided  October,  1879.  A.,  a  citizen  of  Switzerland, 
died  in  1861  in  Virginia,  intestate  and  without  issue.  For  want 
of  an  heir  capable  under  the  statutes  of  the  State  to  inherit  the 
lands  there  situate,  whereof  he  died  seized  in  fee,  they  were  sold 
by  the  escheator  of  the  proper  district.  A.'s  next  of  kin,  B.,  a 
citizen  of  Switzerland,  filed  a  petition  to  recover  the  proceeds  of 
that  sale,  upon  consideration  of  the  treaty  between  the  United 
States  and  the  Swiss  confederation  of  November  5, 1850.  Held : 
That  the  treaty  is  the  supreme  law  of  the  land,  and  by  its  terms 
the  incapacity  of  B.  as  an  alien  was  so  far  removed  as  to  entitle 
him  to  recover  and  sell  the  lands,  and  "withdraw  and  export 
the  proceeds  thereof." 

That  his  rights  thus  secured  are  not  barred  by  the  lapse  of 
time,  inasmuch  as  no  statute  of  Virginia  prescribes  the  term 
within  which  they  must  be  asserted. 

That  where  a  treaty  admits  of  two  constructions,  one  restrictive 
of  the  rights  which  may  be  claimed  under  it,  and  the  other  lib- 
eral, the  latter  is  to  be  preferred. 

That  the  treaty-making  clause  of  the  Constitution  is  retro- 
active as  well  as  prospective. 


202  Citations  to  the  Code  or  Virginia. 

That  in  view  of  B.'s  rights  in  the  premises,  the  escheator  is 
entitled  only  to  the  amount  allowed  by  law  for  making  sales 
of  real  estate  in  ordinary  cases. 

The  counsel  cannot  be  paid  out  of  fund  in  dispute. 

Section  2397. 

In  the  case  of  The  Commonwealth  vs.  Martins  Executor 
and  Devisee,  5  Munf.,  117,  decided  March  30,  1816.  A  tes- 
tator devised  his  real  estate  in  Virginia  to  his  executors,  to 
be  sold  by  them  or  the  survivor  of  them,  at  such  time  and  in 
such  manner  as  they,  or  the  survivor  of  them,  should  judge 
most  advantageous ;  and  gave  and  bequeathed  the  money  aris- 
ing from  such  sales,  and  the  rents  and  profits  of  the  said  lands 
which  might  accrue  before  the  sales,  to  his  sisters,  who  were 
aliens,  subject,  nevertheless,  to  the  payment  of  his  just  debts, 
and  of  certain  legacies  to  his  executors.  Qucere :  Whether  under 
this  will  the  title  of  the  alien  sisters  was  good  against  the  Com- 
monwealth claiming  the  money  for  which  the  lands  were  sold ; 
the  testator  having  died  without  any  lawful  heir,  and  his  per- 
sonal estate  being  sufficient  to  pay  his  debts? 

In  the  case  of  Commonwealth  vs.  Selden,  etc.,  5  Munf.,  160, 
decided  April  1,  1816,  it  was  held :  The  finding  of  an  inquest 
of  escheat  in  favor  of  the  Commonwealth  will  not  take  aAvay 
the  title  of  a  purchaser  claiming  by  a  deed  of  bargain  and  sale, 
legally  executed  and  recorded  before  the  inquest  was  sealed, 
though  without  the  knowledge  of  the  bargainee  till  afterwards. 

In  the  case  of  Ferguson  vs.  Franklins,  6  Munf.,  305,  decided 
February  20,  1819,  it  was  held :  A  sale  and  conveyance  of  land 
by  a  trustee  cannot  be  set  aside  on  the  ground  that  he  was  an 
alien  when  the  deed  was  made  to  him,  and  when  he  conveyed 
the  land  to  the  purchaser. 

In  the  case  of  Huhbard  vs.  Goodwin,  Kennedy,  etc.,  vs.  Same, 
3  Leigh,  492,  decided,  it  was  held :  The  court  of  equity  in  such 
case  follows  the  law  in  relation  to  escheats  of  legal  estates  pur- 
chased by  aliens ;  and  as  the  law  does  not,  in  cases  of  escheat, 
give  the  Commonwealth  the  profit  received  by  the  alien  or  any 
other  person  before  office  found,  so  neither  will  equity,  in  the 
case  of  the  trust  estate,  give  the  Commonwealth  the  profits 
thereof  accrued  before  decree. 

Section  2398. 

In  the  case  of  Watson  vs.  Lyle's  Administrator,  4  Leigh,  236, 
decided  February,  1833,  it  was  held :  Under  a  petition  under  the 
statute,  1  Rev.  Code,  Chapter  82,  Section  14,  by  the  creditor  of  a 
person  whose  lands  have  been  escheated,  the  creditor  is  required 
to  make  an  affidavit  that  the  amount  of  his  demand  is  lona  fide 
due ;  but  this  requisition  of  the  statute  does  not  dispense  with 


Citations  to  the  Code  of  Virginia.  203 

the  necessity  of  other  evidence.  The  court  can  only  render 
judgment  for  such  sum  as  is  proved  to  be  due. 

If  judgment  has  been  rendered  for  the  whole  amount  of  the 
demand,  when  the  whole  is  not  proved  to  be  due,  and  it  is  un- 
certain to  what  part  the  proof  extends,  an  appellate  court  will 
reverse  the  judgment  and  dismiss  the  petition. 

The  escheator,  who  is  defendant  to  the  petition,  has  the  same 
right  to  plead  the  statute  of  hmitations  in  bar  of  the  petition 
that  a  representative  of  the  debtor  would  have  to  plead  the 
statute  in  bar  of  an  action. 

In  the  case  of  Sands  vs.  Lyman  [Escheator),  27  Grat.,  291,  de- 
cided March,  1876.  H.,  of  foreign  birth,  died  in  1867,  seised 
and  possessed  of  real  estate  in  B.,  intestate  and  without  any 
known  heirs.  The  real  estate  of  which  he  died  seised  vested  in 
possession  in  the  State  without  office  found  or  other  proceed- 
ings at  law. 

After  the  death  of  H.,  G.  sued  his  curator,  S.",  for  a  large  debt 
alleged  to  be  due  from  H.,  and  there  was  a  judgment  by  de- 
fault. G.  then  sued  S.,  the  curator  in  equity,  to  subject  the 
real  estate  of  which  H.  died  seised  for  the  payment  of  the  judg- 
ment. There  was  a  decree  for  a  sale,  and  a  sale  was  made  in 
pursuance  of  the  decree,  when  J.  became  the  purchaser  of  a  part 
of  the  property  sold.  Held  :  The  State  not  having  been  a  party 
to  the  suit,  the  decree  and  sale  are  a  nullity  as  to  her,  and  gave 
J.  no  title  to  the  property  purchased  by  him.  If  J.  was  a  ho7ia 
fide  purchaser,  he  is  entitled  to  be  substituted  to  the  rights  of 
the  creditor  G. ;  and  upon  showing  that  the  claim  of  G.  is  just, 
to  have  the  real  estate  subjected  to  its  payment.  After  the  death 
of  H.  an  inquisition  of  escheat  was  executed  in  1868,  and  the 
jury,  after  finding  the  death  of  H.  without  known  heirs  seised  of 
the  real  estate,  stated  that  certain  parties  were  in  possession, 
claiming  under  said  sale.  The  escheator  returned  the  inquisi- 
tion in  June,  1869,  when  the  property  was  advertised  as 
escheated.  J.  then  filed  his  petition  in  the  proper  court,  stating 
that  he  held  the  property  under  his  purchase,  and  asking  for  an 
injunction.  The  escheator  and  register  were  made  parties,  but 
before  the  escheator  answered,  the  court  made  a  decree  per- 
l)etuating  the  injunction.  The  escheator  then  filed  a  bill  to  re- 
view the  decree.  Held :  It  was  error  to  make  a  decree  passing 
upon  the  rights  of  the  purchaser  of  the  property  and  perpetuat- 
ing the  injunction  without  the  answer  of  the  escheator.  (Code 
of  1860,  Chapter  113,  Section  8.)  As  the  title  of  the  State  does 
not  depend  upon  the  inquisition,  it  cannot  be  affected  by  any 
errors  or  irregularities  in  the  proceedings  of  the'  escheator. 
The  decree  of  the  court  was  a  decree  by  default,  and  the  bill  of 
review  by  the  escheator  may  be  treated  as  a  petition  for  a  re- 
hearing of  the  decree ;  but  it  was  a  proper  case  for  a  bill  of  review. 


204  Citations  to  the  Code  of  Vibginia. 

Section  2399. 
The  reference  to  27  Grat.,  291,  is  to  the  case  cited  supra  Sec- 
tion 2398. 

CHAPTEK  CVI. 


TITLE  XXX. 

CHAPTER  CVII. 
Section  2413. 

In  the  case  of  The  Bank  of  the  United  States  vs.  Ca'rrington 
et  als.,  7  Leigh,  566,  decided  November,  1836,  it  was  held: 
Where  land  is  purchased  and  paid  for  by  one  person,  and  the 
conveyance  is  taken  to  another,  the  law  will  imply  a  trust  for 
the  benefit  of  the  former,  and  such  purchase  and  payment  may 
be  proved  by  parol  evidence. 

In  the  case  of  Lyle  vs.  Higginhotham,  10  Leigh,  57  (2d.  edi- 
tion, 67),  decided  February,  1839,  it  was  held :  Case  in  which 
under  the  particular  circumstances  a  letter  written  by  a  mort- 
gagee to  his  attorney,  informing  him  that  the  mortgage  debt  had 
been  paid,  and  requesting  him  to  dismiss  a  suit  then  pending  to 
foreclose  the  mortgage,  was  held  to  be  proper  evidence  in  favor 
of  a  subsequent  incumbrancer,  in  a  controversy  with  the  execu- 
tor of  the  mortgagee,  who  had  revived  the  proceedings  to  fore- 
close, the  attorney  submitting  to  produce  the  letter,  if  directed 
by  the  court  to  do  so. 

In  the  case  of  Borst  vs.  Nalle  et  als.,  28  Grat.,  423,  435  and 
436,  decided  March,  1877,  T.,  an  executor,  employs  R.  to  sell  a 
tract  of  land  for  him,  and  to  facilitate  it,  T.  executes  a  deed  to 
B.,  but  does  not  deliver  it.  R.  makes  a  sale  to  B.,  and  B.  pays 
the  money  to  T.,  and  then  T.  delivers  the  deed  to  R.,  and  at  the 
same  time  R.  executes  a  deed  to  B.  In  a  suit  by  a  judgment 
creditor  of  R.  against  B.  to  subject  the  land  to  pay  his  debt. 
Held :  T.  is  a  competent  witness  to  prove  the  fact  that  R.  sold 
as  his  agent,  that  the  conveyance  to  him  was  that  he  could 
convey  to  B.,  and  that  B.  paid  the  purchase-money  to  him. 

By  the  conveyance  to  R.  there  was  an  implied  or  resulting 
trust  in  favor  of  B.,  who  had  paid  the  purchase-money ;  and  this 
trust  may  be  proved  by  parol  evidence.  The  trust  ha^dng  been 
fully  executed  by  R.  conveying  the  land  to  B.  before  this  litiga- 
tion was  commenced,  it  seems  that  on  that  ground  parol  evi- 
dence is  admissible  to  establish  the  trust.  R.  being  dead,  B.  is 
not  a  competent  witness  in  his  own  behalf  as  to  the  sale  and 
conveyance  of  the  property. 

In  the  case  of  Boiling  vs.  Ted  et  ah.,  76  Va.,  487  and  492 : 


Citations  to  the  Code  of  Virginia.  205 

1.  Chancery  Practice. — Partition.  Commissioners  to  make 
partition  allot  land  to  husband  instead  of  his  wife,  whose  inher- 
itance it  was,  and  their  report  is  confirmed  by  the  court ;  no 
conveyances  are  directed  or  made.  Held:  The  husband  ac- 
quires no  title  by  the  proceedings :  1.  Decree  of  partition  does 
not  of  itself  operate  as  a  conveyance  of  title.  2.  The  court 
usually  directs  the  execution  of  mutual  conveyances  by  the 
parties,  if  sui  juris,  and  by  a  commissioner  for  those  non  sui 
juris.     3.    Registration   of  partition,   or  assignment  of  dower, 

does  not  alter  this  rule  of  chancery,  but  only  gives  notice  of  the 
decree. 

2.  Coparceners. — At  common  law  coparceners  could  make 
partition  even  by  parol.  No  conveyance  is  necessary.  They 
are  seised  of  their  shares  by  descent  from  the  common  ances- 
tor, and  partition  only  adjusts  their  rights.  Quaere:  Has  the 
rule  been  changed  by  statute? 

Mutual  conveyances  are  necessary  to  pass  title  in  all  cases 
where  partition  can  only  be  made  by  deed,  as  between  joint 
tenants 

In  the  case  of  Burkholder  et  als.  vs.  Ludlam  et  als.,  30  Grat., 
255,  decided  March,  1878,  it  was  held :  B.,  who  married  the 
daughter  of  C,  bought  a  lot  when  he  was  poor,  and  C.  in  good 
circumstances.  B.,  being  unable  to  pay  for  the  lot,  turned  it 
over  to  C,  who  paid  for  it,  took  the  title  in  his  own  name,  and 
commenced  to  build  a  house  on  it  for  his  daughter,  the  wife  of 
B.  Before  the  house  was  finished  B.  removed  with  his  family 
to  another  town  and  engaged  in  business,  which  was  succeeding 
well,  when  C.  offered  that  upon  condition  that  he  would  return, 
he  would  turn  over  the  lot  and  unfinished  building  to  the  wife 
of  B.  as  her  own  property.  B.  acceded  to  this,  and  with  his 
family  returned,  and  he  paid  the  expenses  of  doing  so,  and  then 
with  his  own  earnings  and  that  of  his  wife,  finished  the  build- 
ing, took  possession,  and  had  remained  therein  for  about  twelve 
years ;  but  no  deed  was  made  by  C.  to  the  property  until  the 
insolvency  of  C,  and  after  judgments  were  obtained  against  him 
and  duly  docketed.  The  house  and  lot  were  then  conveyed  to  a 
trustee  for  the  wife  of  B.,  in  consideration  of  five  dollars  and 
"love  and  affection."  In  a  suit  by  the  judgment  creditors  to 
annul  the  deed  and  enforce  their  liens,  held :  That  the  title  to 
the  house  and  lot  was  in  the  trustee  for  the  use  of  the  wife  and 
children  of  B.,  and  that  the  liens  of  the  judgments  against  C. 
did  not  attach  to  the  property. 

A  court  of  equity  will  compel  the  conveyance  of  the  legal  title 
of  land  claimed  under  a  parol  gift,  supported  by  a  meritorious  con- 
sideration, and  by  reason  of  which  the  donee  has  been  induced 
to  alter  his  condition  and  make  expenditures  of  money  in  valua- 
ble improvements  on  the  land. 


206  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Stokes  et  als.  vs.  Oliver  et  als.,  76  Va.,  72 : 

1.  Parol  Gifts. — Whenever  Valid  Quoad  Creditors  of  Donor. 
In  1853  and  1855,  S.  owned  estate  of  much  value,  and  owed 
but  one  debt,  for  which  his  sons,  H.  and  E.,  were  sureties.  In 
1853,  he  induced  H.  to  sell  out  in  L.  and  settle  on  a  farm  in 
P.  E.,  assessed  at  thirteen  thousand  eight  hundred  dollars, 
which  he  agreed  to  give  H.  if  H.  would  pay  him  two  thousand 
five  hundred  dollars.  H.  paid  the  money.  In  1855,  S.  ex- 
changed with  K.  a  farm  in  P.  E.,  assessed  at  fifteen  thousand 
dollars,  for  lands  in  L.,  assessed  at  two  thousand  five  hundred 
dollars.  S.  placed  H.  and  E.  in  possession  of  the  respective 
farms,  and  they  held  notorious  and  adverse  possession  of  it  and 
made  valuable  improvements,  and  paid  taxes  on  same  until 
1869.  S.  also  gave  to  his  daughter,  B.,  land  in  L.,  adjacent  to 
the  land  occupied  by  her  already,  and  she  held  it  openly  and 
cultivated  it  as  her  own  until  1869,  but  made  no  valuable  im- 
provements on  it.  No  conveyances  were  made  until  December, 
1863,  when  S.  conveyed  the  said  farms  to  H.,  E.,  and  B.,  re- 
spectively, by  deeds  declaring  that  they  were,  in  consideration  re- 
spectively, "  of  natural  love  and  affection  and  two  thousand  five 
hundred  dollars,"  of  natural  love  and  affection  and  certain  lands, 
and  of  natural  love  and  affection.  After  these  alienations  were 
made,  S.  retained  estate  ample  to  pay  not  only  what  he  owed  in 
1855,  but  what  he  owed  in  1863.  In  1865  S.  died  insolvent.  In 
1869,  O.,  whose  debt  was  contracted  before  1853,  and  other 
creditors,  whose  debts  were  contracted  after  that  date,  filed  a 
bill  to  annul  these  deeds  as  voluntary  and  void  as  to  them,  and 
to  subject  the  lands  to  pay  their  debts.  Held:  The  bill  should 
have  been  dismissed  as  to  H.  and  E.,  the  parol  gifts  to  whom 
were  not  only  in  part  supported  by  valuable  considerations,  but 
who  were  also  induced  by  the  donor  to  alter  their  conditions, 
and  to  expend  money  in  valuable  improvements  on  the  land. 

2.  The  deed  to  B.  was  voluntary,  and  void  as  to  the  creditors 
of  S.  B.  had  not  been  induced,  by  reason  of  the  parol,  gift  to 
alter  her  condition  and  to  expend  money  in  valuable  improve- 
ments on  the  land.  There  was  nothing  in  her  case  whereon 
she  could  have  founded  a  claim  for  specific  performance.  See 
Burkeholder  vs.  LiLdlam,  etc.,  30  Grat.,  255. 

In  the  case  of  JIalsey  vs.  Peter's  Executor,  79  Va.,  60,  de- 
cided May  1,  1884,  it  was  held :  Equity  will  compel  conveyance 
of  legal  title  of  land  claimed  under  parol  gift,  supported  by 
meritorious  consideration,  and  by  reason  of  which  donee  has 
been  induced  to  alter  his  condition  and  make  expenditures  of 
money  in  valuable  improvements  on  the  land,  and  will  protect 
such  gifts  equally  with  parol  agreements  to  sell  land.  No  writ- 
ing is  necessary  to  create  a  good  equitable  title  to  real  estate. 

The  statute  of  frauds  has  no  bearing  on  parol  gifts  of  land 


Citations  to  the  Code  of  Virginia.  207 

wjiich  are  founded  on  meritorious  consideration.  If  the  promise, 
reduced  to  writing,  could,  under  the  circumstances,  be  enforced, 
it  may  be  enforced  even  when  only  parole. 

In  the  case  of  Origsby  vs.  Oshorii,  82  Va.,  371,  decided  Sep- 
tember 16,  1886,  it  was  held :  A  court  of  equity  will  compel  the 
conveyance  of  the  legal  title  to  land  claimed  under  a  parol  gift, 
accompanied  by  possession,  when  the  donee,  induced  by  the 
promise  to  give  it,  has  made  valuable  improvements  on  it. 
But  the  promise  must  be  definite  in  its  terms  and  clearly  proved. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  717. 

Section  2414. 

In  the  case  of  Davis  vs.  Payne's  Administrator,  4  Rand.,  332, 
decided  June,  1826,  it  was  held :  A  voluntary  conveyance  of  per- 
sonal property,  by  a  party  not  indebted  at  the  time,  is  good 
against  creditors,  if  the  deed  be  duly  recorded,  or  the  posses- 
sion made  solely  and  bona  fide  with  the  donee.  Otherwise  it  is 
void  by  the  Statute  of  Frauds. 

In  the  case  of  Durham  and  Wife  vs.  Dunkley,  6  Rand.,  149 
(cited  as  135),  decided  February  16,  1828,  it  was  held :  A  slave 
is  given  to  an  infant  by  deed,  with  a  reservation  expressed  in  the 
deed  that  the  donor  is  to  keep  the  slave  and  raise  it  for  the 
donee  until  she  arrives  at  the  age  of  thirteen.  The  slave  is  deliv- 
ered to  the  donee  on  the  day  of  the  execution  of  the  deed,  and 
on  the  same  day  taken  back  by  the  donor.  The  deed  is  never 
recorded,  and  the  donee  never  lived  with  the  donor. 

This  gift  is  void  under  the  act  of  Assembly. 

A  gift  of  slaves  can  only  be  evidenced  by  deed  or  will  duly 
proved  and  recorded,  or  by  possession  passing  from  donor  to 
donee,  and  remaining  with  him,  or  one  claiming  under  him. 

The  possession  here  meant  is  an  actual,  abiding,  permanent 
possession. 

In  the  case  of  Hunter  vs.  Jones,  6  Rand.,  641,  decided  Octo- 
ber, 1828,  it  was  held :  A  parol  gift  of  a  slave  by  a  father  to  an 
infant  child  living  with  him,  by  a  declaration  that  the  gift  is 
made,  without  delivery  of  possession,  is  not  good  against  a  sub- 
sequent purchaser  of  that  slave,  although  the  purchaser  knew 
at  the  time  of  his  purchase  that  the  father  had  so  made  the 
gift. 

In  the  case  of  Shirley  vs.  Long  et  als.,  6  Rand.,  856,  decided 
by  the  General  Court,  August,  1827,  it  was  held  :  If  a  father  give 
a  slave  to  a  child,  and  the  donor  retain  possession  of  the  slave 
and  exercise  control  over  it,  the  gift  is  not  the  less  fraudulent 
because  the  child  always  lived  with  the  father,  and  the  slave  was 
always  called  the  child's  in  the  family  and  neighborhood. 

A  parol  gift  of  a  slave  to  child,  without  possession  in  the 
donee,  is  void,  as  between  donor  and  donee,  if  the  slave  given 


b 


208  CrrATioNS  to  the  Code  of  Virginia. 

be  conveyed  by  deed  (unaccompanied  with  possession  in  the 
donee),  and  without  being  recorded,  it  is  void  as  to  creditors  and 
purchasers. 

If  a  defendant  in  his  answer  admit  that  a  slave  which  he 
claims  as  a  gift  was  always  in  the  possession  and  under  the 
control  of  the  donor,  with  whom  the  donee  lived,  proof  that  the 
donee  had  the  possession  is  inadmissible,  since  it  varies  from 
the  admissions  of  the  defendant. 

In  the  case  of  Hanshorough' s  Executors  vs.  Th^om,  3  Leigh, 
147,  decided  November,  1831.  In  detinue  for  slaves,  the  ques- 
tion being  whether  a  contract  between  plaintiff  and  defendant's 
testator  was  a  gift  or  a  sale  of  the  slaves  by  the  latter  to  the 
former,  the  defendant  demurs  to  the  plaintiff's  evidence.  Held  : 
The  evidence  states  facts  from  which  it  may  fairly  be  inferred 
that  the  contract  was  a  sale,  though  there  was  no  express  proof 
of  any  valuable  consideration  paid  or  stipulated,  and  that  there- 
fore it  was  a  sale. 

In  the  case  of  Brown  vs.  Handley,  7  Leigh,  119,  decided  Jan- 
uary, 1836,  it  was  held :  When  a  father  has  declared  that  he  has 
gi.ven  a  slave  to  a  married  daughter,  and  afterwards  tells  her  to 
go  and  take  possession  of  the  slave,  the  declaration  of  the  father's 
wife,  in  his  absence  at  the  time  the  daughter  takes  possession, 
that  she  did  not  give,  but  only  lent  her  the  slave,  is  of  no  effect 
to  convert  the  father's  gift  into  a  loan,  though  the  daughter  re- 
ceives the  possession  from  the  donor's  wife,  without  complain- 
ing of  her  qualification  of  the  gift. 

When  a  father  has  made  a  parol  gift  of  a  slave  to  a  married 
daughter,  and  delivered  her  the  possession,  the  gift  is  consum- 
mated, and  he  cannot  afterwards  retract  it  by  refusing  to  exe- 
cute a  deed  for  the  slave. 

In  the  case  of  Cross  vs.  Cross's  Administrators,  9  Leigh,  245, 
decided  February,  1838,  it  was  held :  Though  a  parol  gift  of 
slaves  may  be  given  in  evidence  to  show  the  character  of  the 
possession  held  by  the  donee,  yet  the  gift  itself  is  void. 

A  father-in-law  puts  slaves  into  the  possession  of  his  son-in- 
law  on  loan ;  no  length  of  possession  will  give  the  lendee  title 
against  the  lender,  till  such  possession  has  become  adverse  by 
demand  and  refusal  of  the  possession. 

It  seems  that,  as  between  parent  and  child,  possession  of  a 
slave  is  very  equivocal  evidence  of  a  gift  from  the  parent  to  the 
child,  since  the  delivery  of  the  possession  would  equally  accom- 
pany a  loan,  and  the  law  would  rather  infer  a  loan  than  a  gift 
from  a  mere  transfer  of  possession. 

In  the  case  of  Anderson  vs.  Thompson,  11  Leigh,  439,  de- 
cided November,  1840.  A  father  deUvers  a  slave  to  his  infant 
son  living  with  him,  and  calls  upon  persons  present  to  take 
notice  that  he  gives  that  slave  to  the  son,  but  says,  at  the  same 


I 


Citations  to  the  Code  of  Virginia.  209 

time,  that  he  claims  an  estate  in  the  slave  for  his  own  life. 
Held  :  Nothing  passes  to  the  son  by  such  parol  gift. 

In  the  case  of  Anglin  vs.  Botto7n,  3  Grat.,  1,  decided  April, 
1846,  it  was  held  :  On  a  parol  gift  of  slaves,  the  slaves  must 
come  into  the  actual  possession  of  and  remain  with  the  donee, 
or  some  person  claiming  under  him,  to  give  to  such  donee  a  valid 
title  to  the  slaves. 

When,  upon  overruling  a  motion  for  a  new  trial,  the  court  be- 
low certifies  that  the  donor  made  an  absolute  gift  of  slaves  to 
the  donee,  this  is  not  sufficient  to  authorize  the  appellate  court 
to  infer  the  actual  and  continued  possession  of  the  slaves  by  the 
donee,  or  those  claiming  under  him,  which  is  essential  to  his 
title.  Such  a  certificate  as  to  other  personal  property  would 
imply  such  a  delivery  as  constituted  a  valid  gift. 

The  reference  to  5  Grat.,  364,  is  to  the  case  of  Tutt  vs. 
Slaughter  {Executor),  and  decides  the  questions  of  a  case  of  gift, 
depending  not  on  law,  but  evidence. 

In  the  case  of  Henry  vs.  Graves,  16  Grat.,  244,  decided  April 
16,  1861,  it  was  held :  A  husband,  in  the  lifetime  of  his  wife, 
makes  an  absolute  gift  of  his  wife's  remainder  in  slaves  by  deed, 
which  is  recorded  after  her  death,  and  he  survives  both  his  wqfe 
and  the  life  tenant.  The  gift  is  valid  and  effectual  against  him, 
though  before  possession  is  obtained  by  the  donee  he  dissents 
from  it. 

In  the  case  of  Miller  and  Wife  vs.  Jeffress  et  als.,  4  Grat.,  472, 
decided  January,  1848,  it  was  held  :  A  delivery  is  indispensable 
to  the  validity  of  a  donatio  mortis  causa.  It  must  be  an  actual 
delivery  of  the  thing  itself,  or  of  the  means  of  getting  the  pos- 
session and  enjoyment  of  the  thing ;  or  if  the  thing  be  in  action 
of  the  instrument,  by  using  which  the  chose  is  to  be  reduced 
into  possession.  It  is  not  the  possession  of  the  donee,  but  the 
delivery  to  him  by  the  donor,  which  is  material  in  a  donatio 
mortis  causa  ;  and  after-acquired  possession  of  the  donee  is  no- 
thing ;  and  a  previous  and  continuing  possession,  though  by 
authority  of  the  donor,  is  no  better. 

In  the  case  of  Lee's  Executor  vs.  Boak,  11  Grat.,  182,  decided 
April,  1854.  Testator  gives  a  legacy  to  a  nephew,  but  directs 
that  he  shall  account  for  the  amount  of  certain  bonds  and  re- 
ceipts of  the  nephew  which  the  testator  had  paid  off  for  him  as 
his  security.  After  making  his  will,  testator,  shortly  before 
his  death,  and  in  contemplation  of  that  event,  delivers  to  the 
nephew  the  bonds,  etc.,  with  the  view  of  them  becoming  his  ab- 
solute property  in  the  event  of  the  testator's  death,  and  for  the 
pur|iose  of  discharging  the  nephew  from  all  accountability  for 
the  same  as  one  of  the  legatees,  in  his  settlement  with  the  exec- 
utor. Held:  The  intention  of  the  testator  being  that  the 
nephew  shall  not  account  for  the  moneys  paid  by  the  testator 
U 


210  Citations  to  the  Code  of  Yirginia. 

for  him,  the  gift  of  bonds  and  receipts  is  not  an  advancement  in 
satisfaction  of  the  legacy  to  the  nephew. 

A  bond  may  be  the  subject  of  a  donatio  mortis  causa,  whether 
it  be  the  bond  of  a  stranger  or  the  donee,  and  in  this  case  the 
donation  was  valid. 

In  the  case  of  Mayo's  Executor  et  als.  vs.  CarringtorCs  Execu- 
tor et  als.,  19  Grat.,  74,  decided  February  23,  1869.  The  court 
said :  It  was  stated  in  Henry  vs.  Graves,  16  Grat.,  244,  and  re- 
affirmed in  this  case  as  the  result  of  all  the  authorities,  that  a 
voluntary  gift,  valid  at  law  or  equity,  may  be  made  of  any  pro- 
perty, real  or  personal,  legal  or  equitable,  in  possession,  rever- 
sion, or  remainder,  vested  or  contingent,  and  including  choses 
in  action,  unless  they  be  of  such  a  nature  as  that  an  assignment 
of  them  would  be  a  violation  of  the  law  against  maintenance 
and  champerty ;  that  such  a  gift  to  be  valid,  must  be  complete, 
and  not  executory,  that  what  is  necessary  to  the  completion  of 
the  gift  depends  on  the  nature  of  the  subject  and  the  circum- 
stances of  the  case,  and  that  it  is  always  sufficient,  though  not 
always  necessary  to  the  completion  of  a  gift,  at  least  between  the 
parties,  that  the  donor  do  everything  in  his  power,  or  which  the 
nature  of  the  case  will  admit  of,  to  make  it  complete. 

In  the  case  of  Morrison's  Executors  vs.  Grubh,  23  Grat.,  342, 
decided  March,  1873-,  it  was  held:  W.,  executor  of  M.,  files  a 
bill  against  G.  in  which  he  says  that  his  testator  in  his  lifetinae 
owned  a  number  of  bonds  or  notes  amounting  to  four  thousand 
dollars,  which  were  drawn  payable  to  him,  and  were  in  his  pos- 
session a  few  days  before  his  death.  That  after  his  death  they 
were  in  possession  or  under  the  control  of  said  G.,  and  were  not 
assigned  to  him ;  and  that  G.  gave  no  consideration  for  them. 
The  averments  do  not  make  a  case  against  G.,  and  do  not  enti- 
tle the  plaintiff  to  any  recovery  or  relief  against  him. 

The  bill  further  alleges  that  the  bonds,  etc  ,  were  the  property 
of  M.  at  his  death,  and  became  assets  of  said  estate  which 
should  come  to  plaintiff's  hands,  that  he  is  entitled  to  know 
what  bonds  of  said  M.  said  G.  holds,  and  to  recover  them  for  the 
said  M.'s  estate.  And  he  calls  for  a  full  answer.  G.  answers 
and  denies  that  he  had  in  possession,  or  under  his  control  at 
the  time  of  M.'s  death,  or  at  any  time  since,  any  bonds  which 
were  at  his  death  property,  or  to  which  the  plaintiff,  as  his  execu- 
tor, or  otherwise  had  any  right,  title,  or  interest.  These  averments 
of  the  bills  are  facts,  and  necessary  to  sustain  it,  and  being  posi- 
tively denied  by  the  answer  must  be  proved.  The  defendant  hav- 
ing denied  the  allegations  of  the  bill,  proceeds  to  state  that  the 
bonds  were  the  property  of  M.,  and  were  given  to  him  by  M., 
and  when  and  how  it  was  done.  The  whole  statement  must  be 
taken  together  as  his  answer. 

In  the  case  of  Basket  vs.  Hassell,  107  U.  S.  S.  C.  Keport, 


Citations  to  the  Code  of  Virginia.  211 

602,  decided  October,  1882,  it  was  held  :  A  certificate  of  deposit 
in  these  terms : 

EvANSviLLE  National  Bank, 
Evansville,  Ind.,  September  3,  1875. 

H.  M.  Chanej  has  deposited  in  this  bank  twenty-three  thou- 
sand five  hundred  and  fourteen  dollars  and  seventy  cents,  pay- 
able in  current  funds  to  the  order  of  himself  on  surrender  of 
this  certificate,  properly  endorsed,  with  interest  at  the  rate  of 
six  per  cent,  per  annum  if  left  for  six  months. 

$23,514.70.  Heney  Reis,  Cashier. 

may,  as  a  subsisting  chose  in  action,  be  the  subject  of  a  valid 
gift  if  the  person  therein  named  endorse  and  deliver  it  to  the 
donee,  and  thus  vest  in  him  the  whole  title  and  interest  therein, 
or  so  deliver  it,  without  endorsement,  as  to  divest  the  donor  of 
all  present  control  and  dominion  over  it,  and  make  an  equitable 
assignment  of  the  fund  which  it  represents  and  describes. 

A  donatio  mortis  causa  must,  during  the  life  of  the  donor,  take 
effect  as  an  executed  and  complete  transfer  of  his  possession  of 
the  thing  and  his  title  thereto,  although  the  right  of  the  donee 
is  subject  to  be  divested  \)j  the  actual  revocation  of  the  donor, 
or  by  his  surviving  the  apprehended  peril,  or  by  his  outliving 
the  donee,  or  by  the  insufficiency  of  his  estate  to  pay  his  debts. 
If,  by  the  terms  and  conditions  of  the  gift,  it  is  to  take  effect 
only  upon  the  death  of  the  donor,  it  is  not  such  a  donation,  but 
is  available,  if  at  all,  as  a  testamentary  disposition.  Where, 
therefore,  during  his  last  illness,  and  when  he  was  in  apprehen- 
sion of  death,  the  person  named  in  the  above  certificate  made 
thereon  the  following  endorsement : 

"  Pay  to  Martin  Basket,  of  Henderson,  Kentucky ;  no  one 
else ;  then  not  till  my  death.  My  life  seems  to  be  uncertain. 
I  mav  live  through  this  spell.     Then  I  will  attend  to  it  myself. 

"H.  M.  Cheney." 
and  then  delivered  it  to  Basket,  and  died  at  his  home,  in  Ten- 
nessee.    Held :  That  Basket,  by  such  endorsement  and  deliv- 
ery, acquired  no  title  to  or  interest  in  the  fund. 

In  the  case  of  Thomas's  Adm'r  vs.  Bettie  Thomas  Lewis  et 
als.,  89  Virginia,  1,  decided  June  16,  1892,  it  was  held:  The 
words  "  no  gift "  in  the  Code  of  1887,  Section  2414,  refers  not 
to,  and  the  section  does  not  embrace  gifts,  causa  mortis. 

In  the  case  of  Yauglian  et  als.  vs.  Moore  et  als.,  89  Va.,  925, 
decided  March  30,  1893.  A  father  executed,  acknowledged, 
and  delivered  a  deed  of  gift  of  land  to  his  son.  After  its'  de- 
livery to  the  clerk  for  record,  but  before  it  was  actually  re- 
corded, the  father  took  and  destroyed  it,  and  conveyed  the  land 
to  others  having  notice  of  the  son's  equitable  rights.  Held : 
The  court  below  erred  in  refusing  to  set  up  the  destroyed  deed 
in  behalf  of  the  son. 


212  Citations  to  the  Code  of  Virginia. 

Section  2415. 

See  the  references  to  Section  2860. 

In  the  case  of  Boss  vs.  Milne  and  Wife,  12  Leigh,  204,  de- 
cided April,  1841,  it  was  held :  Upon  an  indenture  between  S. 
and  R.,  wherein  R.  covenants  to  pay  money  to  M.,  a  daughter 
of  S.,  within  two  months  after  S.'s  death,  the  representative  of 
S.  only  can  maintain  an  action  against  R.  for  breach  of  cove- 
nant, and  M.  cannot  maintain  either  covenant  for  the  breach  or 
debt  for  the  money.  So,  upon  a  contract  between  S.  and  R., 
whereby  R.,  upon  a  consideration  moving  entirely  from  S.,  pro- 
mises to  pay  S.'s  daughter  M.  a  sum  of  money  after  S.'s  death, 
M.  cannot  maintain  either  debt  or  assumpsit  for  the  money ;  the 
representative  of  S.  only  can  maintain  an  action  at  law. 

In  the  case  of  Jones  vs.  Thomas,  21  Grat.,  96  and  102,  de- 
cided June,  1871,  A.  T.  executes  his  bond  as  follows :  March  12, 

1863.     I  hereby  bind  myself,  my  heirs,  etc.,  to  pay the 

amount  of  principal  and  interest  due  from  W.  A.  J.  on  the  tract 
of  land  purchased  by  him  of  G.  W.  J.  and  wife.  Witness  my 
hand  and  seal  the  day  and  date  above.  And  he  delivers  it  to- 
W.  A.  J.  Held  :  W.  A.  J.  may  maintain  an  action  of  covenant 
on  the  bond  against  A.  T. 

W.  A.  J.  may  recover  upon  the  bond  against  A.  T.,  if  A.  T. 
has  not  paid  the  debt,  though  it  is  not  averred  or  proved  that 
W.  A.  J.,  has  paid  it,  or  has  been  otherwise  injured  by  the 
failure  of  A.  T.  to  pay  it. 

The  declaration  does  not  in  its  commencement  aver  that  A. 
T.  covenanted  with  the  plaintiff  to  pay  the  debt,  but  it  does  so- 
in  a  subsequent  part  of  it.     This  is  substantially  sufficient. 

In  a  declaration  on  a  covenant  it  should  be  set  out  without 
any  intermediate  inducements  or  statements  of  the  considera- 
tion, but  if  averments  are  made  which  may  be  treated  as  mere 
surplusage,  they  will  not  vitiate  the  declaration. 

Qucere :  If  G.  W.  J.  might  not  sue  on  this  bond  in  his  own 
name  to  enforce  the  covenant  of  A.  T.,  under  the  act,  Code  of 
1860,  Chapter  116,  Section  2? 

In  the  case  of  Stuart  vs?  James  River  <&  Kanawha  Company, 
24  Grat.,  294  and  297,  decided  January,  1874,  it  was  held :  The 
act  of  March  1,  1867,  entitled  an  "act  to  authorize  the  James 
River  &  Kanawha  Company  to  borrow  money,"  though  when 
accepted  by  the  company  it  creates  a  contract  between  the  com- 
pany and  the  State,  does  not  create  a  contract  between  the  com- 
pany and  the  holders  of  the  $180,000  of  State  bonds  therein 
mentioned ;  and  a  holder  of  one  of  these  bonds  cannot  maintain 
an  action  thereon  against  the  company.  Though  the  company 
has  executed  a  mortgage  on  its  property  to  secure  money  au- 
thorized to  be  borrowed  by  said  act,  yet  if  the  company  has  not 
borrowed  the  money,  or  made  use  of  the  bonds  intended  to  be 


Citations  to  the  Code  of  Vibginia.  213 

secured  by  the  mortgage,  it  cannot  be  held  to  have  accepted  the 
terms  of  the  act  or  become  liable  under  its  proviso  in  relation 
to  said  $180,000  of  State  bonds. 

In  the  case  of  Clemmitt  and  Wife  vs.  JVew  York  Life  Insur- 
ance Company,  76  Va.,  355  and  360,  decided  March  30,  1882 : 

1.  Insurance  Policy. — War.  Husband  took  out  policy  on  his 
life  for  his  wife,  and,  in  case  she  died  before  him,  then  for  her 
children.  Premiiims  paid  up  to  the  war.  After  the  war,  insur- 
ance company  repudiated  the  policy.  Then  wife  died,  only  one 
child  surviving.  Suit  was  brought  by  the  child  during  life  of 
insured  for  damages  for  breach  of  policy.  Pending  suit,  insured 
died.  At  trial,  circuit  court  instructed  the  jury  that  if  they  be- 
lieved from  the  evidence  that  the  insurance  company  repudiated 
the  policy  during  wife's  life,  action  accrued  to  wife ;  and,  after 
her  death,  action  survived  to  her  personal  representative,  and 
they  must  find  for  defendant ;  and  refused  to  give  other  instruc- 
tions.    Held: 

1.  The  instructions  were  erroneous.  As  soon  as  wife  died, 
the  child's  rights  vested.  After  insurance  company  repudiated 
policy,  wife  might  have  sued  in  her  own  name  (Code  1873, 
Chapter  12,  Section  2)  for  damages  for  breach,  or  await  the 
event  on  which  the  sum  assured  became  payable  to  her  if  she 
survived  the  insured,  to  her  children  if  she  did  not  survive  him. 

2.  The  war  only  suspended,  but  did  not  abrogate  the  poHcy. 

3.  The  insurance  company's  repudiation  of  the  policy  after 
the  war,  excused  thereafter  the  insured  from  making  any  tender 
of  premiums. 

In  the  case  of  Tilley  vs.  Connecticut  Fire  Insurance  Company , 
86  Va.,  811,  decided  April  10,  1890,  it  was  held :  Any  person 
having  an  interest  in  property  insured,  though  no  party  to  the 
policy,  may  institute  and  maintain  an  action  in  his  own  name  to 
extent  of  loss  occasioned  him  by  its  destruction. 

Section  2416. 

In  the  case  of  Martin  vs.  Flowers,  8  Leigh,  158,  decided 
March,  1837.  A  deed  for  the  conveyance  of  land,  purporting  to 
be  made  by  A.,  attorney  in  fact  for  B.,  witnesses  "that  the  said 
attorney  in  fact.  A.,  for  and  in  consideration,  etc.,  doth  release 
and  quit  claim,"  etc.,  and  concludes,  "in  testimony  whereof  the 
said  B.  hath  hereunto  set  his  hand  and  seal,"  but  is  signed  with 
the  name  of  A.  (not  styled  attorney),  a  scroll  being  annexed  to 
the  signature.     Held  :  This  is  not  the  deed  of  B.,  and  does  not 

I  convey  his  title  to  the  land. 
In  the  case  of  Shanks  et  als.  vs.  Lancaster,  5  Grat.,  110,  de- 
cided July,  1848,  it  was  held  :  A  power  of  attorney  for  convey- 
ance of  lands  falls  within  both  the  letter  and  spirit  of  the  act 
regulating  conveyances. 
1 


214  Citations  to  the  Code  of  Virginia. 

1  Kev.  Code,  Chapter  99,  Section  7,  page  363,  authorizing 
deeds  to  be  acknowledged  before  any  two  justices  of  the  peace 
for  any  county  or  corporation  of  the  United  States,  and  the  cer- 
tificate of  the  justices  is  sufiicient  for  the  admission  of  the 
power  of  attorney  to  record  with  the  conveyance,  although  it 
does  not  certify  the  instrument  to  any  court  or  clerk's  office  for 
the  purpose  of  being  recorded. 

The  act,  1  Kev.  Code,  Chapter  99,  Section  15,  page  365,  does 
not  embrace  power  of  attorney,  or  authorize  two  justices  to  take 
and  certify  the  privy  examination  of  the  wife  as  to  her  execu- 
tion thereof. 

A  deed  executed  by  an  attorney  in  fact,  in  which  he  refers  to 
the  power  of  attorney,  but  conveys  in  his  own  name  as  attorney, 
and  covenants  and  warrants  in  his  own  name  on  behalf  of  his 
principal,  the  deed  being  signed  with  the  name  of  the  principal, 
as  by  the  attorney,  is  the  deed  of  the  principal. 

It  is  a  sufficient  execution  of  a  deed  by  an  attorney  in  fact  for 
his  principal  if  he  signs  the  name  of  the  principal  with  the  seal 
annexed,  stating  it  to  be  done  by  him  as  attorney  by  the  prin- 
cipal, or  if  he  signs  his  own  name  with  the  seal  annexed,  stating 
it  to  be  for  the  principal. 

A  deed  of  husband  and  wife,  executed  under  a  power  of  attor- 
ney, is  the  deed  of  the  husband,  though  it  is  void  as  to  the  wife, 
the  power  being  void  as  to  her. 

In  the  case  of  Bryan  vs.  Stump,  etc.,  8  Grat.,  241,  decided 
October,  1851.  A  trustee  in  a  deed,  the  trusts  of  which  have 
been  satisfied,  executes  a  power  of  attorney  to  a  third  person, 
with  authority  to  release  the  deed.  The  attorney  executes  a 
deed,  which  commences  in  the  name  of  the  trustee  by  the  attor- 
ney, but  it  is  signed  in  the  name  of  the  attorney  for  the  trus- 
tee, and  it  releases  the  land  not  to  the  grantor  in  the  trust  deed, 
but  to  a  purchaser  under  him.  Held  :  The  deed  of  trust  is  duly 
and  regularly  released. 

In  the  case  of  Stinchcomh  vs.  Marsh,  15  Grat.,  202,  decided 
July,  1858,  it  was  held :  M.  gives  to  J.  a  power  of  attorney  to 
sell  her  lands  in  the  county  of  K.,  with  a  power  to  J.  to  appoint 
other  agents  or  attorneys.  J.  executes  a  power  to  C.  to  sell  the 
lands,  but  the  power  only  authorizes  C.  to  act  in  the  name  of  J., 
and  it  is  signed  by  J.  in  his  own  name,  without  any  reference  to 
his  principal.  This  power  does  not  authorize  C.  to  convey  the 
land  as  attorney  of  M. 

Section  2418. 
In  the  case  of  Tah  vs.  Baird,  3  Call,  475  (2d  edition,  411), 
decided  November  12,  1803,  it  was  held  :  If  the  verdict  does  not 
find  title  or  possession  in  the  grantor,  he  can  convey  neither, 
and  therefore  his  gi-antee  cannot  maintain  an  ejectment  against 
the  tenant  in  possession. 


Citations  to  the  Code  of  Virginia.  215 

In  the  case  of  Hall  vs.  Hall,  3  CaU,  488  (2d  edition,  421),  de- 
cided November  12,  1803,  it  was  held :  If  the  title  of  the  heir 
be  abated  by  a  stranger,  he  cannot  convey  it  by  deed  of  bargain 
and  sale  before  entry. 

In  the  case  of  Carrington  vs.  Goddin,  13  Grat.,  587,  decided 
February  3,  1857,  it  was  held :  A  party  having  an  interest  in  or 
claim  to  land  held  adversely  by  another,  may,  under  the  Code, 
sell  and  convey  the  same,  and  his  grantee  may  maintain  eject- 
ment for  it. 

Testator  empowers  his  executors  to  set  apart  so  much  of  his 
estate,  not  specifically  bequeathed,  as  they  may  think  sufficient  to 
produce  a  clear  annual  income  by  rent  or  interest  of  two  thou- 
sand dollars,  which  is  directed  to  be  distributed  among  certain 
legatees  for  life,  and  after  some  other  unimportant  provisions, 
he  gives  the  balance  of  his  estate  among  his  nieces  and  nephews. 
And  then  he  says  :  "And  for  the  purpose  of  making  such  divi- 
sion with  greater  facility,  I  hereby  give  to  my  executors,  or  such 
of  these  as  may  choose  to  act,  full  power  to  sell  or  otherwise 
dispose  of  the  whole  or  any  part  of  said  property,  in  such  time 
and  manner^  and  on  such  credit  as  to  them  may  seem  most  bene- 
ficial for  the  whole.  Qucere :  If  the  legal  title  to  the  real  estate 
vested  in  the  executor? 

The  executors  had  full  power  and  authority  to  sell  all  or  any 
part  of  the  real  estate ;  and  a  ho7ia  fide  purchaser  from  them  is 
not  bound  to  show  that  such  sale  was  necessary  for  the  purpose 
of  making  division  among  the  devisees. 

A  bona  fi,de  purchaser  will  not  be  affected  by  the  failure  of  the 
executors  to  account  for  the  purchase-money,  and  therefore  evi- 
dence to  prove  such  failure  is  properly  excluded  in  an  action  at 
law  between  a  claimant  under  such  purchaser  and  the  devisees. 
The  executors  by  a  deed  reciting  that  it  is  made  in  execution  of 
the  powers  vested  in  them,  in  the  considering  of  an  exchange 
of  land  made  with  A.  (one  of  the  executors),  and  for  the  further 
consideration  of  one  dollar  paid  by  the  purchaser,  convey  a  lot 
belonging  to  their  testator's  estate.  Such  deed  on  its  face  is  not 
invalid,  but  passes  the  title  to  the  purchaser. 

In  an  action  of  ejectment  by  a  party  claiming  under  the  pur- 
chaser against  the  devisees,  evidence  to  prove  that  the  considera- 
tion of  the  deed  was  different  from  that  expressed  in  it  is  in- 
admissible. 

A  deed  of  trust  conveys  two  small  lots  in  Adam's  Valley  with 
other  property,  and  upon  its  face  shows  that  it  was  intended^  to 
convey  all  the  property  of  the  grantor.  In  fact,  three  lots  had 
been  conveyed  to  the  grantor,  though  two  of  them  fronted  on 
the  same  street,  and  adjoined  each  other,  and  both  together 
fronted  but  sixty-two  feet  on  the  street,  and  they  were  unen- 
closed.    Held :    It  is  not  competent  to  prove  by  the  grantor 


216  Citations  to  the  Code  of  Virginia. 

that  he  intended  to  include  both  parcels  of  the  lot  in  his 
deed,  though  there  is  no  objection  to  his  competency  as  a  wit- 
ness. 

If  it  is  doubtful  on  the  face  of  the  deed  whether  one  or  both 
of  the  parcels  were  intended  to  be  conveyed,  the  deed  will  be 
construed  most  strongly  against  the  grantor,  and  so  as  to  give  it 
effect  rather  than  that  it  should  be  void  for  uncertainty. 

Though  it  is  not  competent  to  prove  by  the  grantor  his  inten- 
tion to  convey  by  his  deed  the  land  in  controversy,  yet  he  may 
identify  the  lot,  and  may  show  that  it  answers  to  the  descrip- 
tion given  in  the  deed. 

In  an  action  of  ejectment,  the  tenant,  without  disclaiming  title 
to  any  part  of  the  land  in  the  declaration  mentioned,  proves 
upon  the  trial  that  he  is  only  in  possession,  and  claiming  title  to 
a  part  of  it.  A  verdict  and  judgment  in  favor  of  the  plaintiff 
for  all  claimed  in  the  declaration  is  not  erroneous,  or  if  it  is,  it 
is  not  an  error  by  which  the  tenant  is  injured,  or  of  which  he 
can  complain  in  an  appellate  court. 

In  the  case  of  Mustard  vs.  Wohlford's  Heirs,  15  Grat.,  329, 
decided  September  5,  1859,  it  was  held:  An  infant  sells  his 
tract  of  land,  puts  the  purchaser  in  possession,  and  executes  a 
bond  in  a  penalty  with  condition  to  make  the  title.  The  con- 
tract is  voidable,  but  not  void.  In  such  a  case  the  infant,  on 
coming  of  age,  sells  the  land  to  another  person,  and  executes 
to  him  a  bond  in  a  penalty  with  condition  to  make  the  title. 
This  is  an  avoiding  of  the  first  contract. 

In  this  State  a  party  out  of  possession  may  sell  and  convey 
his  interest  in  lands;  and  therefore,  though  the  first  purchaser 
from  the  infant  has  been  put  in  possession  of  the  land,  and  has 
received  a  conveyance,  the  infant,  on  coming  of  age,  may  con- 
vey, and  his  deed  will  avoid  the  first  deed. 

The  reference  to  15  Grat.,  339,  is  to  the  case  above  cited 
from  page  329. 

In  the  case  of  Young  vs.  Young,  89  Va.,  675,  decided  Feb- 
ruary 16,  1893,  it  was  held :  A  contingent  remainder,  which  is  a 
mere  possibility,  is  not  within  the  Code,  1873,  Chapter  148, 
Section  1,  allowing  an  attachment  against  "  estates  or  debts  "  in 
certain  cases.  A  contingent  remainder,  which  is,  however,  "  an 
interest  or  claim  "  to  real  estate,  may  be  conveyed  under  Code, 
Section  2418. 

A  conveyance  of  a  contingent  remainder,  if  made  with  gene- 
ral warranty  of  title,  would  operate  as  an  estoppel  as  against 
the  grantor  subsequently  claiming  that  he  had  no  estate  in  the 
real  estate  conveyed  at  the  date  of  the  conveyance. 

Section  2419. 
In  the  case  of  Pembleton  vs.    Van  De   Vier,  1  "Washington, 


h 


Citations  to  the  Code  of  Virginia.  217 

381,  decided  at  the  fall  term,  1794:  P.,  holding  under  a  devise 
which  conveyed  either  a  life  estate  or  a  fee-simple  (which  the 
coui-t  did  not  decide),  made  a  deed  of  lease  and  release  to  M., 
whereupon  the  heir  at  law  of  P.'s  devisor  brought  suit  to  re- 
cover the  land,  under  the  claim  that  a  lease  and  release  for  a 
term  longer  than  the  tenant  had  therein  worked  a  forfeiture  of 
the  estate.  P.  was  living  at  the  time  of  the  suit.  Held:  No 
forfeiture,  as  the  deed  could  only  operate  to  convey  such  in- 
terest as  P.  had  therein. 

In  the  case  of  Carter  vs.  Tyler  et  als.,  1  Call,  165  (2d  edition, 
143),  decided  November  14,  1797,  it  was  held  :  By  the  act  of 
October,  1776,  for  docking  entails,  all  remainders,  as  well  con- 
tingent as  vested,  are  utterly  barred,  whether  the  entail  be 
created  before  or  after  the  passing  of  the  act.  Nor  will  the 
court,  in  order  to  avoid  this  effect,  construe  that  to  be  an  execu- 
tory devise  which  before  would  have  been  held  to  be  a  contin- 
gent remainder ;  and  during  the  trial  of  the  cause  the  court  an- 
nounced (page  174,  2d  edition,  150)  that  the  alienation  or  war- 
ranty of  a  grantor  cannot  give  the  grantee  a  better  title  than  the 
grantor  himself  possessed,  which  was  so  clear  as  not  to  require 
the  labor  used  to  prove  it. 

In  the  case  of  Urquhart  et  als.  vs.  Clarke  et  als.,  2  Rand., 
549,  decided  June  11,  1824,  it  was  held:  Where  a  husband  con- 
veys the  property  of  his  wife  with  warranty  against  the  claims 
of  himself  and  his  heirs,  his  children,  deriving  title  from  their 
mother,  will  not  be  affected  by  the  warranty. 

In  the  case  of  Wiseley  vs.  Findlay  et  als.,  3  Rand.,  361,  de- 
cided March,  1825,  it  was  held :  Where  a  purchaser  acquires 
the  rights  of  certain  legatees  to  their  undivided  portions  of  their 
fiither's  estate,  and  the  conveyances  recite  that  the  widow  is  en- 
titled to  a  life  estate  in  the  same  property,  whereas  in  truth  she 
has  only  an  estate  for  years,  the  conveyance  will  nevertheless 
be  good  for  the  whole  amount  of  interest  possessed  by  the 
legatees. 

In  the  case  of  NormfiavUs  Executor  vs.  Cunningham,  and  Wife 
et  als.,  5  Grat.,  63,  decided  April,  1848.  Mrs.  W.  and  Miss  T., 
as  tenants  in  common,  hold  the  equitable  title  to  a  tract  of  land 
by  warrant,  survey,  and  possession.  N.  marries  Miss  T.,  and 
then  buys  Mrs.  W.'s  moiety  of  the  land,  and  a  patent  issues  for 
the  whole  tract  to  N.  and  his  wife  T.  T.  dies  in  1805,  leaving 
several  children.  After  her  death  N.  sells  the  land  t<5  hona  fide 
purchasers  without  notice,  and  conveys  to  them  with  general 
warranty.  He  marries  a  second  time,  and  dies  in  1838,  leaving 
a  widow,  and  children  by  both  of  his  wives,  and  devises  and  be- 
queaths to  them  a  large  estate.  After  the  death  of  N.  the  chil- 
dren of  his  first  wife,  T.,  file  their  bill  against  his  executrix, 
claiming  compensation  from  the  estate  of  N.  for  the  moiety  of 


218  Citations  to  the  Code  of  Virginia. 

the  tract  which  had  belonged  to  their  mother,  T.,  and  thej 
charge  that  the  sales  and  conveyances  were  to  hona  fide  pur- 
chasers without  notice.  The  executrix  answers,  not  admitting 
the  facts,  and  calling  for  proof.  Held :  It  was  not  competent 
for  N.,  by  an  act  of  his,  to  divest  the  equitable  estate  of  his  wife, 
T.,  and  vest  it  in  himself,  either  absolutely  or  contingently.  N. 
having  sold  the  land  to  hona  fide  purchasers  without  notice, 
equity  will  compensate  the  heirs  of  the  wife,  T.,  out  of  the  estate 
ofN. 

Section  2420. 

In  the  case  of  Kennon  vs.  McHoberts  and  Wife,  1  Wash.,  96, 
decided  at  the  fall  term,  1792,  it  was  held :  A  conveyance,  un- 
limited as  to  duration,  will,  under  the  statute,  convey  the  entire 
interest  of  the  grantor  or  devisor. 

In  the  case  of  Davies  vs.  Miller  et  als.,  1  Call,  127  (2d  edition, 
110)  decided  October  30,  1797,  it  was  held  :  The  word  "estate" 
may  be  transposed  from  the  preamble  or  other  parts  of  a  will, 
and  annexed  to  the  devise  so  as  to  fulfil  the  intention  of  the 
testator  to  give  a  fee.  In  this  case  that  intention  was  further 
manifested  by  the  use  of  the  same  word  in  the  conclusion  of  the 
will. 

In  the  case  of  Watso7i  vs.  Powell,  3  Call,  306  (2d  edition, 
265),  decided  October  27, 1802,  it  was  held :  The  word  "estate,'" 
used  in  describing  a  devise,  is  a  word  of  limitation,  and  convey* 
a  fee-simple.  (Words  of  limitation  are  expressly  dispensed  with 
by  this  statute.     This  refers  to  the  common  law.) 

In  the  case  of  Wyatt  vs.  Sadler's  Heirs,  1  Munf.,  537,  decided 
April  27,  1810:  A  testator  (who  died  in  the  year  1768)  ex- 
pressed himself  in  the  introductory  part  of  his  will  thus  :  "  And 
as  to  what  worldly  goods  it  hath  pleased  God  to  give  me,  I 
leave  and  bequeath  as  followeth : "  In  the  next  clause  he  wills 
and  devises  that  his  wife  should  enjoy  all  his  lands  during  her 
life,  and  after  her  decease,  gives  and  bequeaths  to  his  two  sons 
all  his  land,  to  be  equally  divided  between  them,  his  still,  like- 
wise, to  be  between  them,  to  distill  for  their  own  use,  and  after 
to  his  eldest  son.  A  fee-simple  estate  in  his  share  of  the  land 
passed  to  the  younger  son. 

In  the  case  of  Johnson  et  als.  vs.  Johnsons  Widow  and  Heirs, 
1  Munf.,  549,  decided  May  9,  1810,  it  was  held :  A  fee-simple 
estate  in  lands  might  pass  by  a  will  (even  before  the  act  of 
1785,  C.  65,)  without  words  of  perpetuity,  or  any  words  equiva- 
lent :  provided  it  appeared  from  the  whole  will  taken  together 
that  such  Avas  the  intention  of  the  testator.  When  an  ilHterate 
testator  uses  the  same  words  in  disposing  of  his  real  estate  as 
in  disposing  of  his  personal  property,  and  in  the  same  clause  of 
the  will,  it  is  fair  to  infer  that  he  intended  to  give  them  the  same 
effect  as  to  both  kinds  of  property. 


Citations  to  the  Code  of  Virginia.  219 

In  the  ease  of  Mooherry  et  als.  vs.  Marye,  2  Munf.,  453,  de- 
cided April  13,  1811,  it  was  held:  A  devise  of  lands  (before  the 
first  of  January,  1787),  without  words  of  perpetuity,  will  not  be 
enlarged  to  a  fee-simple,  on  the  ground  of  a  general  charge, 
arising  from  a  direction  that  all  the  testator's  debts  be  first 
paid,  especially  if  other  funds  be  appropriated  for  payment  of 
the  debts. 

In  the  case  of  Goodrich  vs.  Harding  et  als,^  3  Rand.,  280,  de- 
cided March,  1825,  it  was  held:  The  words  "temporal  goods" 
may  be  borrowed  from  the  preamble  of  a  will  and  coupled  with 
a  devising  clause  to  enlarge  a  life  estate  into  a  fee-simple. 

In  the  case  of  deary  vs.  Taylor  et  als.,  29  Grat.,  448  and  454, 
decided  November,  1877.  By  a  deed  made  on  the  28th  of  July, 
1828,  certain  land  in  said  deed  described  was  granted  to  D.  by 
his  grandson  R.,  his  executors,  administrators,  and  assigns,  from 
and  after  the  grantor's  death,  for  and  during  his  life  only ;  and 
after  his  death  the  said  piece  of  land  to  go  to  such  person  or 
persons  as  shall  at  that  time  answer  the  description  of  heir  or 
heirs  at  law  of  the  said  R. ;  and  such  person  or  persons  shall 
take  the  said  land  under  that  description  as  purchasers  under 
and  by  virtue  of  the  deed,  and  not  by  inheritance  as  heirs  of  the 
said  R.  Held :  R.  took  but  a  life  estate  in  the  land,  and  the 
persons  who  at  the  time  of  R.'s  death  answered  the  description 
of  his  heirs  at  law,  took  as  purchasers  under  the  deed. 

By  the  act  of  1785,  dispensing  with  the  word  "heirs"  in  the 
grant  of  an  estate  in  fee-simple,  the  grant  to  the  remainderman 
is  a  fee;  but  that  act  does  not,  therefore,  extend  the  rule  in 
Shelley's  case  to  the  estate  given  to  R.,  so  as  to  enlarge  it  into 
a  fee. 

In  the  case  of  Wine  vs.  MarJcwood  et  als.,  31  Grat.,  43  and 
46,  decided  November,  1878.  P.  by  his  will  gave  to  his  four  sons, 
George,  Joseph,  James,  and  Sampson,  each  a  parcel  of  land;  to 
George  and  Joseph  in  fee,  and  to  the  other  two  each  devise,  ex- 
cept as  to  the  land  devised  the  same,  and  is  as  follows :  Fourth, 
I  will  and  bequeath  to  my  son  Sampson  the  use  and  benefit  of 
the  home  place,  which  I  now  occupy,  containing  about  three 
hundred  acres,  during  his  natural  life;  he  then  says,  should  my 
sons,  George,  Joseph,  James,  and  Sampson,  or  any  of  them 
die  without  issue,  I  direct  that  what  has  been  bequeathed  to 
them  shall  be  equally  divided  between  the  surviving  brothers, 
James  and  Sampson,  for  their  use  and  benefit  during  their  nat- 
ural lives.  Held :  That  Sampson  took  but  a  life  estate  in  th'e 
laud  devised  to  him. 

The  term  in  the  limitation  over,  under  the  Virginia  statutes, 
means  issue  living  at  the  death  of  the  first  taker,  or  born  within 
ten  months  thereafter.  If  Sampson  has  issue  living  at  his  death, 
or  born  within  ten  months  thereafter,  his  issue  will  take  the 


220  Citations  to  the  Code  of  Virginia. 

land  devised  to  Sampson  by  implication.  Sampson  sells  in  fee- 
simple  a  part  of  the  land  devised  to  him.  The  purchaser  must 
elect  to  give  up  the  land  or  take  such  title  as  Sampson  can  give 
him  to  it. 

In  the  case  of  MarkelU  vs.  Markells,  32  Grat.,  544  and  557, 
decided  November,  1879.  M.  by  his  will  in  December,  1864, 
after  directing  the  payment  of  his  debts,  gives  to  his  wife  all  the 
property  of  every  kind  which  belonged  to  her  at  the  time  of  their 
marriage,  and  in  addition  thereto,  he  gives  to  her  for  her  natural 
life  the  house  in  which  he  lives,  with  the  yard  and  garden  at- 
tached, and  his  servant  girl  A.  and  any  increase  that  she  may 
have ;  and  he  gives  her  in  absolute  right  one-half  of  his  personal 
property.  He  gives  to  his  nieces,  E.  and  S.,  certain  articles  and 
Confederate  bonds,  and  also  A.  at  the  death  of  his  wife.  The 
residuary  clause  of  the  will  is  as  follows :  All  the  rest  and  resi- 
due of  my  estate  to  be  divided  into  two  equal  shares,  and  I  give 
one-half  to  my  sons,  J.  and  A.,  and  the  other  half  to  my  nieces 
above  named ;  but  if  from  any  cause  any  alienage  or  confisca- 
tion of  either  of  my  said  sons  cannot  take  or  hold  the  share 
hereby  given  to  him,  then  in  that  event  I  give  the  share  of  such 
one  to  my  two  nieces  above  named.  Held :  The  house  and  lot 
given  to  the  wife  for  her  life  passes  under  the  residuary  clause 
of  the  will  to  the  sons  and  nieces  in  equal  shares,  and  this  though 
there  is  some  evidence  of  conversations  between  M.  and  his  wife 
of  an  intention  that  his  sons  should  have  the  house  and  lot. 
In  the  case  of  Little  vs.  Bowen  et  als.,  76  Va.,  724  and  728 : 
1.  Merger. — "When  greater  and  less  estate  co-exists  in  one 
person,  without  any  intermediate  estate,  the  less  is  immedi- 
ately merged  in  the  greater. 

Section  2421. 
In  the  case  of  Boy  et  als.  vs.  Garnett,  2  "Wash.,  11  (2d  edition, 
p.  9),  decided  at  October  term,  1794.  A.  devises  certain  lands 
to  his  son  J.  for  life,  remainder  to  his  son  M.  and  his  heirs  in 
trust,  and  for  the  use  of  the  first  and  every  other  son  of  his  said 
son  J.  who  should  survive  him  in  tail  male,  equally  to  be  divided, 
but  if  his  said  son  J.  should  die  without  male  issue,  then  he 
gives  the  said  land  to  his  son  M.  during  his  life  with  like  re- 
mainders to  his  first  and  other  sons  who  should  survive  him  in 
tail  male,  equally  to  be  divided ;  but  if  he  should  die  without 
heirs  male,  then  in  trust  for  the  testator's  three  grandsons  who 
should  survive  them  in  tail  male,  equally  to  be  divided ;  remain- 
der to  M.  in  fee.  He  then  desires  that  the  widows  of  his  sons 
and  grandsons  should  be  entitled  to  dower.  Held :  J.  took  an 
estate  for  life  in  possession  with  remainder  in  tail  male,  expec- 
tant upon  the  determination  of  the  estate  tail  to  his  surviving  sons. 
The  estate  for  life  did  not  incorporate  the  implicative  branch 


Citations  to  the  Code  of  Virginia.  221 

of  the  devise,  because  the  estates  were  of  different  natures,  the 
former  being  a  legal  estate,  and  the  latter  remaining  an  equita- 
ble estate,  not  executed  by  the  statute  of  uses  for  the  want  of 
male  issue  of  James. 

See  the  case  of  Carter  vs.  Tyler  et  als.,  1  Call,  165  (2d  edition, 
143),  ante,  Section  2419. 

In  the  case  of  Hill  vs.  Barrow,  3  Call,  342  (2d  edition,  297), 
decided  April  28,  1803,  it  was  held:  Devise  of  lands  to  T.  H., 
to  him  and  his  heirs  for  ever,  but  in  case  T.  H.  dies  without  law- 
ful heir,  remainder  over  to  R.  H.  and  his  heirs  forever  creates 
an  estate-tail  in  T.  H.,  and  consequently  is  barred  by  the  act  of 
Assembly  docking  entails. 

In  the  case  of  Tate  vs.  Tally,  3  Call,  354  (2d  edition,  307), 
decided  April  28,  1803,  it  was  held :  Devise  of  lands  to  A.,  and 
if  the  said  A.  should  die  not  having  any  lawful  heir  of  his  body, 
then  the  land  to  go  to  B.;  this  is  an  estate  tail. 

In  the  case  of  Crump  et  als.  vs.  Dudey  et  ux.,  3  Call,  507  (2d 
edition,  439,  quoted  in  Code  as  501),  decided  June  23,  1790. 
E.  P.  devised  a  slave  to  her  daughter  for  life,  and  if  she  died  be- 
fore testator's  son,  J.  P.,  then  to  be  given  to  my  son  J.,  after 
which  she  gave  the  remainder  of  her  estate  to  be  equally  di- 
vided among  her  four  children,  T.,  J.,  M.,  and  S.  Held :  It 
seems  that  the  remainder  in  the  slave  passes. 

In  the  case  of  Smith  vs.  Chapman,  1  H.  and  M.,  240,  decided 
June  5,  1807.  A  testator  made  three  devises  (to  his  two  sons 
and  daughter  severally)  for  the  life  of  each  devisee,  and  after  his 
or  her  decease,  to  his  or  her  child  or  children,  if  none  to  the 
other  two  devisees  for  life  and  then  to  be  equally  divided  be- 
tween their  children,  and  annexed  a  codicil,  in  which  he  says 
that  if  all  his  children  should  die  without  issue  of  their  bodies, 
his  wife  living,  the  life  estate  should  go  to  his  wife  during  her 
natural  life,  and  after  her  death,  remainder  to  other  persons. 
Held :  The  two  sons  and  daughter  take  each  an  estate  for  life, 
and  the  remainders  over  are  good,  and  may  take  effect,  the  con- 
tingencies not  being  too  remote. 

In  construing  wills  made  since  the  Acts  of  Assembly  of  1776 
and  1785  on  the  subject  of  estates  tail,  it  seems  that  the  courts 
in  this  country  -will  not,  by  implication,  turn  an  express  estate 
for  life  with  limitations  over  in  remainder  into  a  fee  tail,  as  in 
like  cases  in  England,  because,  although  it  is  done  there  to 
effectuate  the  general  intention  of  the  testator,  such  a  construc- 
tion, under  the  operation  of  our  statutes,  would  defeat  that  in- 
tention. 

In  the  case  of  Eldridge  vs.  Fisher,  1  H.  and  IVl*.,  559,  decided 
November  17,  1807.  A  testator,  by  will  made  in  1784,  devised 
certain  lands,  with  personal  estate  in  the  same  clause,  to  his  son 
and  his  heirs  forever,  "  and  if  my  son,  J.  P.,  should  die  without 


222  Citations  to  the  Code  of  Virginia. 

a  lawful  heir,"  remainder  over  to  testator's  grandsons.  Held  : 
The  first  devisee,  J.  F.,  took  an  estate -tail,  which  was  converted 
into  a  fee-simple  by  the  act  for  docking  entails. 

In  the  case  of  Warner  vs.  Mason  et  xix.,  5  Munf.,  242,  decided 
November  20,  1816,  it  was  held :  A  testator  gave  to  his  son  W. 
a  tract  of  land  "  during  his  natural  hfe,  and  then  to  his  heirs 
lawfully  begotten  of  his  body,  that  is,  bom  at  the  time  of  his 
death,  or  nine  calendar  months  afterwards";  and  for  want  of 
such  heirs,  then  heir  to  his,  J.'s  two  sons,  Jacob  and  George, 
one  of  them  to  set  a  price  on  the  whole  of  it,  and  give  or  receive 
half  of  that  amount  from  the  other.  This  was  a  good  limitation 
by  way  of  contingent  remainder  to  Jacob  and  George. 

In  the  case  of  Bells  vs.  Gillepsie,  5  Eandolph,  273,  decided 
June,  1827,  it  was  held :  A  will  is  made  between  the  1st  day  of 
January,  1787,  and  the  1st  day  of  January,  1820,  by  which  the 
testator  gives  to  his  sons  several  tracts  of  land,  and  if  either  of 
them  should  die  without  lawful  issue,  the  part  allotted  to  hini  to 
be  equally  divided  among  his  survi\'ing  brothers ;  and  this  is  a 
fee-tail,  and  not  an  executory  devise. 

In  the  case  of  Broaddus  and  Wife  vs.  Turner,  5  Rand.,  308, 
decided  June,  1827,  it  was  held :  Ey  a  will  dated  in  1778,  the 
testator  gave  a  tract  of  land  to  his  two  sons,  to  be  equally 
divided  between  them,  to  them  and  their  heirs  forever,  but  in 
case  either  of  his  sons  should  die  without  issue  lawfully  begotten, 
he  desired  that  the  survivor  should  have  the  whole.  But  if  both 
his  said  sons  should  die  without  issue,  he  desired  that  his  land 
should  be  sold  by  his  executors,  and  the  money  arising  there- 
from should  be  equally  divided  among  his  daughters  then  living, 
etc.  This  is  an  estate-tail  in  the  sons,  which  was  converted  into 
a  fee-simple  by  the  act  of  1776. 

In  the  case  of  Jiggetts  and  Wife  vs.  Davis,  1  Leigh,  368,  de- 
cided June,  1829,  it  was  held  :  Testator  having  realty  of  his  own 
inheritance  and  personalty,  part  acquired  in  his  own  right  and 
part  in  right  of  his  wife,  devises  all  his  worldy  estate  in  manner 
following :  All  the  profits  of  my  estate,  after  providing  genteel 
support  for  my  wife  and  daughter,  to  be  applied  to  my  debts ; 
and  after  debts  paid,  I  wish  my  estate  kept  together  for  mutual 
benefit  of  my  wife  and  daughter,  until  my  daughter  attain  full 
age  or  marry.  After  which  I  wish  my  estate  divided  in  the  fol- 
lowing manner:  I  leave  my  wife  one-half  the  land  I  live  on,  and 
one-half  of  my  estate  during  her  life.  If  my  wife  die  without 
any  more  issue,  the  whole  of  my  estate  to  revert  to  my  wife,  and 
if  they  both  die  without  issue,  then  that  part  of  my  estate  which 
came  by  my  wife  to  revert  to  her  brothers  and  sisters  that  may 
then  be  living,  and  the  balance  of  my  estate  to  revert  to  my 
brother  J.,  or  to  his  heirs,  if  any;  if  none,  to  be  equally  divided 
between  my  two  half-brothers.     If  my  wife  marry  and  again 


Citations  to  the  Code  of  Virginia.  223 

have  issue,  I  wish  her  to  have  the  disposal  of  the  whole  pro- 
perty that  came  by  her.     Held : 

1.  Took  by  the  devise,  the  moiety  of  the  land  that  was  not 
devised  to  the  wife. 

2.  The  daughter  took  an  implied  estate-tail  in  the  moiety  of 
the  land  devised  to  her;  and  the  wife  took  an  implied  estate- 
tail  in  the  moiety  devised  to  her  expressly  for  life ;  each  of  which 
estates  was  converted  into  a  fee-simple,  by  force  of  the  statute 
abolishing  estates-tail ;  consequently : 

3.  The  executory  limitations  were  contingent  reminders,  and 
barred  by  the  statute. 

In  the  case  of  Seekright  on  demise  of  Bramble  vs.  Blllups,  4 
Leigh,  90,  decided  January,  1833.  Testator  devises  the  residue 
of  his  real  estate  to  his  daughter,  L.  B.,  and  her  husband,  J.  B., 
during  the  life  of  the  longest  Hver  of  them,  and  then  to  their 
offspring,  if  any,  by  his  daughter,  L.  B.,  as  they  shall  think  best 
.  to  give  it;  and,  in  default  of  such  offspring,  to  M.  B.'s  and  N. 
A.'s  offspring,  if  they  have  any,  and  as  they  think  best  to  dis- 
pose to  their  offspring ;  and  if  they  have  none,  then  to  the  poor 
of  E.  R.  parish.  At  the  date  of  the  will,  the  testator's  daughter, 
L.  B.,  had  offspring  by  her  husband,  J.  B.  The  daughter  died 
before  the  testator,  her  offspring  survived  him  and  died  in  in- 
fancy ;  living,  their  father,  J.  B.  Held :  J.  B.,  the  husband,  took 
by  the  will  an  estate-tail,  which  the  statute  for  abolishing  en- 
tails converted  into  a  fee-simple,  and  barred  the  contingent,  re- 
mainder limited  on  the  estate-tail ;  dusenthnte,  Tucker,  P. 

In  the  case  of  Doe  on  demise  of  See  vs.  Craigen,  8  Leigh,  449, 
decided  August,  1836.  Testator  devises  to  his  daughter,  P.  C, 
the  upper  half  of  his  plantation,  but  should  she  die  without 
heirs  of  her  own  body,  then  the  said  half  of  the  plantation  to  be 
divided  between  the  son-in-law  and  son  of  the  testator.  Held : 
P.  C.  took  by  the  will  an  estate-tail  in  the  land  devised  to  her, 
which  the  statute  for  abolishing  entails  converted  into  a  fee- 
simple,  and  barred  the  contingent  remainder  limited  on  the  estate- 
tail. 

In  the  case  of  Deane  vs.  Hansford,  9  Leigh,  253,  decided 
February,  1838.  Testator,  by  his  will,  lends  slaves  and  their  in- 
crease to  his  grandson,  T.  D.,  and  the  heirs  of  his  body,  and  if 
he  shall  die  without  a  lawful  heir,  then  he  bequeaths  them  to  the 
children  of  his  daughter,  E.  S.  Held :  This  is  an  executory  Hm- 
itation  after  an  indefinite  failure  of  issue  of  the  grandson,  and 
therefore  void,  and  the  slaves  rest  in  the  grandson  in  absolute 
property. 

In  the  case  of  Brooke  vs.  Croxton,  2  Grat.,  50G,  decided  Jan- 
uary, 1846,  it  was  held :  A  testator,  after  directing  that  all  his 
■  estate  shall  be  equally  distributed  among  his  seven  children, 
K    adds:  "It  is  my  will  and  desire  that  if  any  of  my  children 

L 


224  Citations  to  the  Code  of  Virginia. 

should  die  before  they  attain  to  legal  age,  or  without  a  lawful 
heir,  in  either  case  that  all  such  property  as  they  may  receive 
in  the  division  of  my  property,  return  to  my  surviving  children 
or  their  lawful  heirs."  Held :  The  limitation  over  takes  place 
upon  the  happening  of  either  contingency. 

Upon  the  death  of  one  of  the  children  under  age,  his  share  of 
the  estate  vested  absolutely  in  the  survivors,  and  upon  the  death 
of  another  child  under  age,  or  without  children,  the  property 
which  such  child  received  from  the  share  of  the  first  did  not 
pass  under  the  limitation  over  to  the  sm'viving  children. 

In  the  case  of  Pryor  vs.  Duncan  et  als.,  6  Grat.,  27,  decided 
April,  1849.  A  testator  devises  as  follows :  I  lend  to  my  daugh- 
ter, Lucy,  my  negro  woman  Sidney  and  her  child  Sarah,  and  ne- 
gro boy  named  John,  to  her  during  her  natural  life,  and  to  her 
heirs  lawfully  begotten  of  her  body.  And  should  my  said  daugh- 
ter, or  her  husband,  dispose  of,  convey  out  of  the  way,  conceal, 
or  attempt  to  alienate  the  negroes  aforesaid,  I  do  hereby  declare 
her  title  to  cease,  and  direct  my  executors  to  take  them  in  posses- 
sion ;  and  in  such  case  after  her  decease,  they  and  their  in- 
crease to  be  divided  among  her  children  if  living ;  otherwise  to  be 
divided  among  my  children,  J.,  E.,  P.,  and  C,  and  their  heirs. 
Held :  The  daughter  Lucy  had  but  a  life  estate  in  the  slaves, 
and  her  children  took  in  remainder  as  purchasers  under  the 
will. 

In  the  case  of  Lucas  and  Wife  vs.  Dajfield,  6  Grat.,  456,  de- 
cided October,  1849,  it  was  held :  Every  part  of  a  will  may  be 
looked  to  to  ascertain  the  intention  of  a  testator  in  the  particular 
devise,  and  thus  to  limit  the  phrase,  dying  without  issue,  to  a 
dying  without  issue  living  at  the  death  of  the  devisee. 

In  the  case  of  Nowlin  and  Wife  vs.  Winfree,  8  Grat.,  346,  de- 
cided January,  1852,  it  was  held :  Prior  to  1819,  a  testator  de- 
vises to  his  three  daughters  by  name  his  estate  "  both  real  and 
personal,"  to  them  and  their  heirs  lawfully  begotten  of  their 
bodies.  "And  in  case  either  of  my  daughters  should  die  with- 
out heir  or  heirs,  as  above  mentioned,  the  surviving  ones  to  en- 
joy their  equal  part."  This  is  an  estate-tail,  which  by  the  stat- 
ute is  converted  into  a  fee ;  and  the  limitation  over  is  after  an 
indefinite  failure  of  issue,  and  void. 

In  the  case  of  Caliis  et  als.  vs.  Kemp  et  als.,  11  Grat.,  78, 
decided  April,  1854:  In  1799  testator  lends,  to  his  son,  B.,  a 
tract  of  land  during  his  natural  life,  and  if  he  should  die  with- 
out lawful  issue,  testator  gives  the  land  to  his  grandson,  H.  B., 
to  him  and  his  heirs  forever.  But  should  my  son  B.  leave  law- 
ful issue,  my  will  and  desire  is  that  he  will  dispose  of  said  laud 
to  such  of  his  issue  as  he  may  think  fit.  Held :  That  B,  took 
an  estate-tail  in  the  land,  which  by  the  statute  was  converted 
into  a  fee. 


I 


Citations  to  the  Code  of  Virginia.  225 

In  the  case  of  Moore  et  als.  vs.  Brooks,  12  Grat.,  135,  decided 
February  28,  1855.  Testator  gives  his  estate  to  his  wife  during 
her  life ;  and  at  her  death  it  is  to  be  equally  divided  amongst  all 
of  his  children,  and  the  shares  of  his  two  daughters,  M.  and  B.,  to 
be  held  by  them  during  their  natural  lives  and  no  longer,  and 
then  equally  divided  between  their  heirs  lawfully  begotten ;  and 
at  his  wife's  death,  he  directs  the  lands  to  be  sold,  and  the  pro- 
ceeds divided  as  aforesaid.  Held :  The  words  "  lawfully  to  be 
begotten,"  are  words  of  limitation,  and  M.  and  B.  took  the  whole 
interest  in  their  shares  of  the  estate. 

In  the  case  of  Nixon  vs.  Bose,  12  Grat.,  425,  decided  May  21, 
1855.  Testatrix  bequeaths  slaves  to  A.,  B.,  and  C,  jointly,  upon 
the  following  trust :  To  be  held  by  them  in  trust  only  for  the 
benefit  of  her  daughter,  E.,  a  married  woman,  or  her  heirs. 
And  as  it  is  my  wish  to  guard  in  the  most  ample  manner  against  • 
the  imprudent  sale  or  other  disposition  of  the  aforesaid  property 
during  the  natural  life  of  E.,  it  is  hereby  wholly  and  solely  con- 
fided to  the  discretion  of  the  aforesaid  trustees,  A.,  B.,  and  C, 
in  what  manner  the  said  E.  shall  receive  and  enjoy  the  profits 
arising  from  the  liens  or  other  disposition  of  the  slaves  afore- 
said; and  in  the  event  of  the  death  of  E.,  without  heirs  of  her 
body,  then  all  the  slaves  and  their  increase  to  B.  Held:  E. 
took  an  absolute  interest  in  the  slaves,  and  the  bequest  over  is 
void ;  that  it  is  a  bequest  to  the  separate  use  of  E, 

In  the  case  of  Tinsley  vs.  Jones,  13  Grat.,  289,  decided  May 
8,  1856.  B.  died  in  1807,  and  by  his  will  devised  a  tract  of  land 
to  each  of  his  sons,  J.  and  F.  He  then  says:  "It  is  my  will  if 
my  said  son  J.  die  without  issue,  that  the  property  heretofore 
given  him  shall  go  to  his  brother  F.,  who  in  that  case  will  lose 
the  land  heretofore  given  him ;  it  being  my  wdll  and  desire  then, 
and  in  that  case,  and  upon  the  happening  of  the  event  of  my 
son  J.'s  death,  that  the  land  near  W.,  which  should  otherwise 
be  F.'s  share,  be  sold,  and  the  money  equally  divided  between 
my  surviving  children."  J.  dies  without  issue.  Held:  J.  took 
an  estate-tail  in  the  land  devised  to  him,  which  was  converted 
by  the  statute  into  a  fee-simple;  and  therefore  the  limitation 
over  to  F.  is  void.  F.  not  being  entitled  to  take  the  estate  de- 
vised to  J.  under  the  limitntion  over  to  him,  the  bequest  of  the 
proceeds  of  land  devised  to  him,  to  the  surviving  children  of 
the  testator  upon  F.'s  taking  the  land  devised  to  J.,  is  void,  and 
F.  is  entitled  to  retain  it. 

In  the  case  of  JVorris  vs.  Johnston,  17  Grat.,  8,  decided  May 
3,  1866.  Testator  had  twelve  children ;  six  unmarried  daugh- 
ters. He  directed  his  estate  to  be  divided  into  twelve  parts, 
and  gave  a  part  to  each  child.  He  then  says :  "  It  is  my  will 
and  desire  that  if  any  of  my  children  die  without  heirs,  for  their 
part  to  be  equally  divided  amongst  all  of  my  children  then  liv- 
15 


226  Citations  to  the  Code  of  Virginia. 

ing.     Held :  This  is  a  good  executory  bequest  in  favor  of  the 
children  surviving,  one  dying  without  issue. 

In  the  case  of  HalVs  Executor  vs.  Smith  et  als.,  25  Grat.,  70, 
decided  April  16,  1874,  it  was  held:  W.  died  in  1831.  By  his 
will  he  gave  the  residue  of  his  estate,  to  be  equally  divided 
among  his  children,  naming  them,  to  them  and  their  assigns  for- 
ever, "  except  my  daughter,  Mary  C.  ;  and  her  portion,  after 
deducting  forty-nine  dollars,  I  lend  unto  her  during  her  life, 
and  after  her  death  I  give  the  same  to  the  lawful  issue  of  her 
body,  to  them  and  their  heirs  and  assigns  forever."  Mary  C. 
took  an  absolute  interest  in  the  slaves  received  by  her  under  this 
clause  of  the  will. 

In  the  case  of  Stone's  Executor  vs.  Nicholson  et  als.,  27  Grat., 
1,  decided  November,  1876.  Testator,  by  his  will  made  in  Jan- 
uary, 1807,  lends  to  his  daughter,  Sallie,  who  is  one  of  eleven, 
one  female  slave  named  Phcebe,  to  be  possessed  by  her  during 
her  natural  life  or  widowhood  of  her  present  or  future  husband, 
and  at  her  death,  or  after  marriage  of  her  husband,  then  to  be 
equally  divided  among  her  children  ;  and  if  she  has  none,  then 
to  be  equally  divided  among  all  the  testator's  children.  Testa- 
tor died  in  1810,  Sallie  being  then  about  fourteen  years  old. 
She  lived  until  1857,  unmarried,  and  without  children,  the  de- 
scendants of  Phoebe  then  numbering  twenty-five.  Held :  The 
executory  devise  over  to  testator's  children  is  too  remote  and 
void.  If  the  executory  devise  is  not  void,  then  it  includes  all 
the  testator's  children  aUve  at  his  death,  and  Sallie  is  one  of 
them. 

An  executory  devise  over  to  testator's  children  will  always 
be  held  to  refer  to  children  living  at  his  death,  unless  there 
is  a  clear  indication  in  the  will  that  some  other  period  is  in- 
tended. 

In  the  case  of  Taylor  vs.  Cleary  et  als.,  29  Grat.,  448,  decided 
November,  1877.  By  a  deed  made  on  the  28th  of  July,  1828, 
certain  land  in  said  deed  described  was  granted  to  D.  by  his 
grandson,  E.,  his  executors,  administrators,  and  assigns  from 
and  after  the  grantor's  death,  for  and  during  his  life  only ;  and 
after  his  death  the  said  piece  of  land  to  go  to  such  person  or 
persons  as  shall  at  that  time  answer  the  description  of  the  heir 
or  heirs  at  law  of  the  said  R. ;  and  such  person  or  persons  shall 
take  the  said  land  under  that  description  as  purchasers  under 
and  by  virtue  of  the  deed,  and  not  by  inheritance  as  heirs  of 
the  said  E.  Held :  E.  took  but  a  life  estate  in  the  land ;  and 
the  persons  who,  at  the  time  of  E.'s  death,  answered  the  de- 
scription of  his  heirs  at  law  took  as  purchasers  under  the  deed. 
By  the  act  of  1785  dispensing  with  the  word  "  heirs "  in  the 
grant  of  an  estate  in  fee-simple,  the  grant  to  the  remainderman 
is  a  fee ;  but  that  act  does  not,  therefore,  extend  the  rule  in 


Citations  to  the  Code  of  Virginia.  227 

Shelley's  case  to  the  estate  given  to  R.  so  as  to  enlarge  it  into  a 
fee. 

In  the  case  of  TRwe  vs.  Marhwood  et  als.,  31  Grat.,  43,  de- 
cided November,  1878.  P.,  by  his  will,  gave  to  his  four  sons, 
George,  Joseph,  James,  and  Sampson,  each  a  parcel  of  land ;  to 
George  and  Joseph  in  fee,  and  to  the  other  two  each  devise, 
except  as  to  the  land  devised  the  same,  and  is  as  follows: 
fourth,  I  will  and  bequeath  to  my  son  Sampson  the  use  and 
benefit  of  the  home-place  which  I  now  occupy,  containing  about 
three  hundred  acres,  during  his  natural  life;  he  then  says: 
should  my  sons  George,  Joseph,  James,  and  Sampson,  or  either 
of  them  die  without  issue,  I  direct  that  what  has  been  be- 
queathed to  them  shall  be  equally  divided  between  the  surviving 
brothers,  James  and  Sampson,  for  their  use  and  benefit  during 
their  natural  lives.  Held :  That  Sampson  took  but  a  life  estate 
in  the  land  devised  to  him. 

The  term  in  the  limitation  over,  under  the  Virginia  statutes, 
means  issue  living  at  the  death  of  the  first  taker,  or  born  within 
ten  months  thereafter.  If  Sampson  has  issue  living  at  his 
death,  or  born  within  ten  months  thereafter,  his  issue  will  take 
the  land  devised  to  Sampson  by  implication. 

Sampson  sells  in  fee-simple  a  part  of  the  land  devised  to 
him.  The  purchaser  must  elect  to  give  up  the  land,  or  take 
such  title  as  Sampson  can  give  him  to  it. 

In  the  case  of  Camp  vs.  Cleary,  76  Va.,  141. 

Conditional  Limitations. — By  deed  dated  July  28,  1821,  D. 
granted,  to  take  effect  after  his  death,  land  whereon  he  had 
erected  a  mausoleum  to  grandson  R.  for  life,  and  after  his  death 
to  such  a  person  as  shall  at  that  time  answer  the  description  of  his 
heir-at  law,  such  person  to  take  as  purchaser  under  the  deed,  and 
not  by  inheritance  as  heir  of  R.,  on  condition  that  R.  shall 
never  sell,  give,  lease,  mortgage,  or  in  any  way  ahen  the  land, 
or  any  part  thereof,  or  even  attempt  so  to  do  to  any  person 
whomsoever,  then  this  deed  should  be  void,  and  the  land,  to- 
gether with  two  other -lots  conveyed  to  him  in  fee,  shall  re- 
vert to  and  vest  in  his  sister  E.  and  her  heirs  forever.  This  con- 
dition R.  broke,  and  ,the  heirs  of  E.  brought  ejectment  to  re- 
cover it  from  those  claiming  under  alienation  by  R.     Held : 

1.  This  is  a  valid  conditional  limitation,  which  is  defined  to 
be  a  conditional  followed  by  a  limitation  over  to  a  third  per- 
son, in  case  the  condition  be  not  fulfilled,  or  there  be  a  breach 
of  it. 

2.  There  having  been  a  breach  of  the  condition  on  which  R. 

I  held   the    land,    immediately   the  limitation    over    to   C.    took 
effect,  and  E.'s  heirs  have  a  right  to  recover  it  from  R.'s  alienees. 
3.  There  is  nothing  in  the  law  that  prevents  one  man  from 


228  Citations  to  the  Code  of  Virginia. 

limiting  an  estate  to  another  until  lie  alien  it,  or  attempt  to 
alien  it,  or  until  he  become  bankrupt  or  insolvent,  and  as  soon 
as  he  alien  or  attempt  to  alien,  or  become  a  bankrupt  or  insol- 
vent, that  his  estate  shall  cease  and  go  to  another. 

4.  Power  of  alienation  may  be  restricted  to  a  limited  extent 
as  to  designated  persons;  but  absolute  restraint  is  inadmissible, 
except  as  to  the  separate  estates  of  married  woman.  And  so  as 
to  liability  for  debts  (statutory  exemptions  aside). 

5.  The  limitation  over  was  not  void,  for  that  the  contingency 
on  which  it  was  to  take  effect  is  too  remote,  under  the  rul& 
against  perpetuities,  which  requires  that  such  limitations  shall 
take  effect  within  a  life,  or  lives,  in  being,  and  twenty-one  years 
and  ten  months  thereafter.  The  condition  of  the  deed  is,  that 
the  life-tenant  shall  not  alien  or  attempt  to  alien,  etc.,  and  if  he- 
does,  the  whole  property  vests  at  once  in  E.  in  fee-simple. 

6.  The  restrictive  provisions  of  the  deed  are  within  the  limits 
of  the  law,  and  are  confined  to  the  life-tenant  R. 

In  the  case  of  Hood  vs.  Haden,  82  Va.,  588,  decided  Decem- 
ber 2,  1886,  it  was  held :  The  statute  essaying  to  abolish  this- 
rule,  applies  only  when  the  grantor  or  testator  is  competent  to,, 
and  does  vest  in  the  heir  a  remainder  in  fee-simple  after  an 
estate  for  the  ancestor's  life. 

This  is  the  case  cited  as  11  Va.  Law  Journal,  304. 

In  the  case  of  Smith  et  als.  vs.  Fox  {Adm'r),  82  Va.,  763,  de- 
cided February  10,  1887.  Testator  devises  land  to  his  daughter 
M.  without  limitation.  She  had  been  married  thirty  years,  but 
had  no  children.  By  a  later  clause  he  directs  that  all  property 
willed  to  his  daughters  should  be  held  in  trust  by  A.  for  tho 
separate  use  of  them  and  their  children,  etc. ,  and  that  the  trus- 
tee, when  notified  by  either  of  them  of  her  desire  to  sell,  should 
do  so,  and  re-invest  in  the  same  way.     Held : 

1.  "Children"  must  be  construed  as  equivalent  to  "issue" 
in  order  to  effectuate  the  manifest  intention  of  the  testator,  and 
M.  takes  a  fee. 

2.  Jus  disponendi  is  incident  to  such  an  estate  as  M.  held,^ 
and  she  could  encumber  it  for  her  husband's  debts. 

In  the  case  of  Siokes ys.  Van  Wyck,  83  Va.,  724,  decided  Septem- 
ber 23,  1877.  Where  testator,  dying  in  1834,  limited  to  his 
daughter,  Mrs.  W.,  an  estate  for  life,  with  remainder  to  her  issue 
in  fee,  and  in  default  of  issue,  with  limitation  over  to  his  own 
heirs.  Held:  Under  the  law  then  in  force  (1  Rev.  Code  1879, 
page  329,  Section  25),  Mrs.  W.  took  an  estate-tail  that  by  the 
statute  was  converted  into  a  fee-simple,  but  the  fee  was  de- 
terminable by  her  death  without  i§sue  then  living,  with  limita- 
tion over  to  the  person  who  was  testator's  heir  at  the  time  of 
his  death,  the  rule  of  law  applying  which  favors  the  vesting  of 
estates  as  soon  as  possible. 


Citations  to  the  Code  op  Virginia.  229 

In  the  case  of  Hawthorne  vs.  Beckwith,  89  Va.,  786,  decided 
March  30,  1893,  it  was  held :  Where  a  court  below  construed  a 
will  as  giving  a  life  estate  (the  said  rule  not  applying  to  execu- 
tory limitations),  and  the  construction,  on  appeal,  was  not 
drawn  in  question,  but  was  approved  by  the  appellate  court,  the 
question  as  to  what  estate  passed  by  the  will  is  res  judicata, 
and  the  fact  that  the  remaindermen  were  not  parties  to  that 
suit  is  immaterial.     This  is  on  the  ground  of  representation. 

In  the  case  of  Riddick  vs.  Cohoon,  4  Rand,  547,  decided  No- 
vember, 1826,  it  was  held  :  A  limitation  over  an  indefinite  fail- 
ure of  issue  in  the  first  taker  is  too  remote  and  void.  Where  an 
estate  is  given  by  will  to  A.  and  his  heirs,  and  if  he  should  die 
without  issue  living  at  his  death,  then  so  much  of  the  estate  as 
may  remain  undisposed  of  by  A.  to  B. ;  the  limitation  over  is 
void  for  uncertainty,  and  because  the  power  to  dispose  of  the 
property  gives  A.  an  absolute  estate. 

In  the  case  of  Madden  vs.  Madden' s  Executor,  2  Leigh,  377, 
decided  November,  1830.  Testator  bequeathes  that  "all  his  move- 
able property  after  the  death  of  his  wife  shall  be  sold,  and  the 
proceeds  divided  among  his  five  daughters ;  after  all  his  debts 
paid,  all  his  moveable  property  should  be  at  the  disposal  of  his 
wife ;  on  her  decease  the  same  to  be  disposed  as  above  men- 
tioned." Held :  That  the  wife  took  only  a  life  estate  in  such  of 
the  moveables  as  were  capable  of  being  used  and  returned  in 
kind ;  and,  therefore,  the  wife's  gift  of  a  slave  to  one  of  her 
daughters  passed  only  the  wife's  life  estate  therein  to  the  donee. 

In  the  case  of  BurweWs  Executors  vs.  Anderson  [Administrator, 
etc.),  3  Leigh,  348,  decided  December,  1831.  Testator  after  direct- 
ing the  sale  of  certain  property  to  raise  a  fund  to  pay  debts,  and 
after  giving  all  the  residue  of  his  estate  to  his  wife  for  life, 
directs  that  at  her  death  all  his  estate,  real  and  personal,  shall 
be  turned  into  money,  to  be  distributed  as  foUows :  First,  He 
desires  that  his  wife,  by  will  or  otherwise,  may  have  the  abso- 
lute disposal  of  five  hundred  pounds,  then  he  bequeathes  to  his 
nephew,  W.  P.,  two  hundred  pounds,  and  after  deducting  these 
two  sums,  he  bequeathes  two-thirds  of  the  balance  to  his  niece, 
A.  S.,  and  the  other  one-third  to  his  sister,  A.  C,  and  he  directs 
that  if  the  funds  provided  for  debt  prove  inadequate,  the  sum 
to  make  up  the  deficiency  shall  be  deducted  in  equal  propor- 
tions from  the  sums  bequeathed  to  his  wife,  his  niece,  nephew, 
and  sister.  Held :  The  wife  took  by  will  the  absolute  property 
in  the  five  hundred  pounds  bequeathed  to  her,  and  not  a  mere 
power  to  dispose  of  that  sum. 

In  the  case  of  Brown  vs.  George,  6  Grat.,  424,  decided  Octo- 
ber, 1849.  Testatrix  bequeathes  property  to  her  married  daughter 
for  life,  for  her  separate  use ;  the  said  property,  or  so  much 
thereof  as  may  be  in  existence  at  her  death,  to  go  to  her  childreA 


230  Citations  to  the  Code  of  Virginia. 

or  their  descendants  if  there  be  any.  And  more  fully  to  pre- 
serve said  property  to  the  separate  use  of  her  daughter  for  her 
life,  and  to  her  children  after  her  death,  testatrix  appoints  a 
trustee,  to  whom  the  property  is  to  be  delivered  by  her  executor. 
And  she  further  directs  that  all  receipts  given  to  the  trustee  by 
the  daughter,  for  payments  given  to  her  either  of  principal  or 
interest  of  the  property,  shall  be  to  him  a  full  discharge.  Held : 
That  the  daughter  is  entitled  to  use  both  principal  and  interest 
of  the  property  at  her  discretion. 

In  the  case  of  May  vs.  Joynes  et  als.,  20  Grat.,  692,  decided 
March,  1871.  Testator  says,  I  give  to  my  beloved  and  excellent 
wife,  subject  to  the  provisions  hereafter  declared,  my  whole 
estate,  real  and  personal,  and  especially  all  real  estate  which  I 
may  hereafter  acquire,  to  have  during  her  life,  but  with  full 
power  to  make  sale  of  any  part  of  the  said  estate,  and  to  convey 
absolute  conveyance  to  the  purchasers ;  and  use  the  purchase- 
money  for  investment  or  any  purpose  that  she  pleases,  wdth 
only  this  restriction,  that  whatever  remains  at  her  death  shall, 
after  paying  any  debts  that  she  may  owe,  or  any  legacies  that 
she  may  leave,  be  divided  as  follows :  there  are  then  limitations 
to  his  children  and  grandchildren.  Held :  The  wife  takes  a  fee- 
simple  in  the  real,  and  an  absolute  property  in  the  personal 
estate  ;  and  the  limitation  over  whatever  remains  at  her  death,. 
is  inconsistent  with  and  repugnant  to  such  fee-simple,  and  abso- 
lute property  in  said  real  and  personal  estate,  and  fails  for  un- 
certainty. 

In  the  case  of  Sprinkle  vs.  Hayworth,  26  Grat.,  384,  decided 
July,  8,  1875.  S.  and  his  wife  P.  had  no  children,  and  it  was- 
understood  and  agreed  between  them  that  the  survivor  should 
have  all  his  property  during  the  life  of  the  survivor,  and  at  his 
or  her  death  it  should  be  equally  divided  between  his  and  her 
heirs  and  next  of  kin.  S.  made  his  will,  by  which  he  gave  all 
his  property,  real  and  personal,  to  his  wife  P.,  absolutely.  He 
died  in  her  lifetime,  and  she  was  so  shocked  at  his  death  that 
she  was  immediately  paralyzed,  and  remained  unconscious  until 
she  died  the  day  after  he  did.  She  died  without  having  made 
a  will.  Held :  A  court  of  equity  will  not  enforce  the  agreement 
at  the  suit  of  the  heirs  and  next  of  kin  of  S.  against  the  heirs 
and  next  of  kin  of  P. 

In  the  absence  of  fraud  on  the  part  of  a  legatee,  a  court  of 
equity  will  not  enforce  a  parol  charge  upon  his  legacy.  If  it 
appeared  from  the  evidence  in  the  case  that  S.  intended  P. 
should  have  entire  control  of  the  whole  property  during  her  life, 
and  use  as  much  of  it  as  she  chose  to  use,  and  that  only  what 
remained  of  it  at  her  death  was  to  be  divided  between  his 
and  her  heirs  and  next  of  kin,  the  trust  would  not  be  enforced 
even  if  it  had  been  in  writing. 


Citations  to  the  Code  of  Virginia.  231 

In  the  case  of  the  Missionary  Society  of  the  M.  E.  Church  vs. 
Calvert's  Administrator  et  als.,  32  Grat.,  357,  decided  Novem- 
ber, 1879.  C,  owning  several  tracts  of  land  and  personal 
estate,  by  his  will  says  :  "3.  I  give  to  my  wife,  Theresa,  during 
her  natural  life  or  widowhood,  all  my  estate,  real  and  personal, 
except  as  hereinafter  excepted.  But  if  she  should  marry  again, 
she  is  to  have  the  same  portion  of  my  estate  as  if  I  died  intes- 
tate." He  directs  his  executors  to  sell  his  lands  and  personal 
property,  and  then  says :  "  The  home  place  is  for  my  wife,  to 
live  on  as  long  as  she  may  remain  my  widow,  and  then  it  is  to 
be  sold."  He  then  says :  "  I  wish  the  proceeds  of  the  sale  of 
my  real  and  personal  estate,  and  the  debts  due  me  after  paying 
my  debts,  to  be  put  at  interest  by  my  executor,  and  my  wife  to 
receive  the  interest.  But  so  long  as  she  remains  my  widow,  she 
is  to  receive  from  my  executors,  or  from  my  estate,  suclj  part  of 
it  as  she  may  choose,  and  to  appropriate  it  as  she  may  choose 
to  be  just  and  right."  And  he  then  directs  that  all  such  part  of 
his  estate  as  she  does  not  thus  appropriate,  and  all  the  rest  of 
his  estate,  shall  be  given  and  paid  over  to  the  Missionary  So- 
ciety of  the  Methodist  Episcopal  Church,  incorporated  by  an 
act  of  the  legislature  of  the  State  of  New  York,  passed  April  9, 
1839.  All  so  paid  to  the  said  Missionary  Society  shall  be 
paid  to  the  Indian  Mission  by  that  society.  Held :  That 
under  the  provision  that  his  wife,  Theresa,  is  to  be  at  liberty 
to  receive  from  his  executors  such  part  of  it  as  she  may 
choose,  and  appropriate  it  as  she  may  think  just  and  right,  all 
the  estate  directed  to  be  sold  and  invested  by  his  executors 
passed  absolutely  to  his  wife.  The  home  place,  which  was  to 
be  sold  after  the  death  or  marriage  of  his  wife,  did  not  pass  ab- 
solutely to  the  wife,  but  the  proceeds  of  the  sale  thereof  passed 
to  the  said  Missionary  Society.  The  testator,  directing  the 
home  place  to  be  sold  by  his  executors,  the  bequest  to  the  Mis- 
sionary Society,  though  a  foreign  corporation,  is  valid,  they 
taking  the  proceeds  of  the  sale.  The  direction  that  the  Mis- 
sionary Society  shall  expend  it  on  the  Indian  Mission  does  not 
avoid  the  bequest  for  uncertainty. 

In  the  case  of  Carr  vs.  Ejfinger  et  als.,  78  Va.,  197,  decided 
December  13,  1883.  Testator  gave  annuity  of  one  hundred  dol- 
lars to  his  mother,  "to  be  paid  out  of  the  money  arising  from 
the  bonds  due  me,"  and  then  provided  as  follows:  "What 
money  or  bonds  I  have  in  my  possession,  or  judgments  due  me, 
I  leave  unto  my  beloved  wife  to  be  collected,  should  she  think 
it  best,  and  vested  in  Confederate  bonds,  or  loaned  out  at  inter- 
est. Out  of  the  interest  thus  arising,  my  wife  is  to  pay  to  my 
mother  the  one  hundred  dollars  annually,  so  long  as  my  mother 

k shall  live,  and  the  remainder  of  the  interest  thus  arising  is  to  be 


232  Citations  to  the  Code  of  Yirginia. 

five  shares  of  stock  in  the  O.  <fe  A.  R.  K.,  which  she  is  to  sell  at 
such  time  as  she  may  think  proper,  and  invest  the  proceeds  in 
Confederate  bonds,  or  loan  it  out  at  interest  for  her  benefit.  At 
the  death  of  my  wife,  what  bonds  she  may  not  have  used,  I  give 
to  my  two  sisters,  C.  T.  and  S.  E.,  and  the  children  of  their 
bodies.  Held  :  The  wife  takes  an  absolute  estate  in  the  pro- 
perty, subject  to  the  charge  of  the  annuity  to  the  mother. 

In  the  case  of  Cole  vs.  Cole  et  als.^  79  Va.,  251,  decided  July 
31,  1884,  it  was  held  :  It  is  a  well-settled  rule  of  law,  in  the  con- 
struction of  wills,  that  an  absolute  power  of  disposal  in  the  first 
taker  renders  a  subsequent  limitation  repugnant  and  void. 

In  the  case  of  Blair  vs.  Muse,  83  Va.,  238,  decided  April  21, 
1887,  it  was  held :  Unlimited  power  of  alienation  is  an  essential 
incident  of  a  fee-simple  estate.  A  deed  conveys  land  to  four 
grantees  in  fee-simple.  Subsequent  clause,  giving  one  of  them 
power  to  dispose  of  the  whole  at  her  pleasure,  is  invalid,  the 
rule  being,  that  when  two  clauses  in  a  deed  are  repugnant,  the 
first  shall  prevail.  This  is  the  case  cited  from  11  Virginia  Law 
Journal,  566. 

Sections  2422  and  2423. 

See  the  references  supra,  Section  2421. 
Section  2426. 

In  the  case  of  Ware  vs.  Cary,  2  Call,  263  (2d  edition,  222), 
decided  April  21,  1800,  it  was  held:  A  deed  in  which  an  estate 
for  life  is  given  the  husband,  made  by  husband  and  wife,  of  the 
wife's  lands  to  a  trustee,  will  pass  the  estate,  although  no  con- 
sideration be  expressed  therein,  particularly  if  the  verdict 
finds  that  it  was  for  the  purpose  of  settling  it  on  the  wife's 
family. 

In  the  case  of  Rowletts  vs.  Daniel,  4  Munf.,  473,  decided  Oc- 
tober 19,  1815,  it  was  held:  A  legally  certified  copy  of  an 
ancient  deed,  recorded  on  the  grantor's  acknowledgment,  and 
accompanied  with  possession  of  the  land  by  the  grantee,  ought 
to  be  received  as  evidence,  without  any  proof  that  the  original  is 
lost  or  destroyed. 

A  deed  being  defective  as  a  feoffment,  for  want  of  proof  of 
livery  of  seisin,  may  operate  as  a  covenant  to  stand  seised  to 
use,  and  as  such  to  pass  the  title  to  the  grantee,  for  the  use  is 
executed  into  possession  by  the  force  of  the  statute  of  uses. 

A  voluntary  deed  duly  recorded,  operating  as  a  covenant  to 
stand  seised  to  the  use  of  the  grantee,  cannot  be  limited  in  its 
eflfect  by  a  subsequent  deed  from  the  grantor  to  a  third  per- 
son. 

After  executing  a  deed  operating  by  way  of  covenant  to  stand 
seised  to  use,  the  grantor  cannot,  by  a  deiaree  to  a  third  person, 


Citations  to  the  Code  of  Virginia.  233 

convert  his  own  possession  into  a  possession  adverse  to  that  of 
the  grantee. 

In  the  case  of  Bass  and  Wife  et  als.  vs.  Scott  et  als.,  2  Leigh, 
356,  decided  October,  1830,  Testator  devises  and  bequeathes 
real  and  personal  estate  to  trustees,  in  trust  for  the  equal  use 
and  benefit  of  testator's  four  sisters  (naming  them),  and  their 
heirs  forever,  to  be  managed  as  the  trustees  should  think  most 
conducive  to  the  interest  of  each  of  the  parties ;  two  of  the  sis- 
ters being  femes  covert.     Held : 

1.  That  each  of  the  sisters  took  a  fee-simple  as  to  the  real, 
and  the  absolute  property  as  to  the  personal,  subject  in  her 
share  of  the  trust  estate. 

2.  That  the  legal  title  remains  in  the  trustees,  in  order  that 
they  may  manage  the  part  of  the  subject  intended  for  the  use 
and  benefit  of  each  sister,  in  such  manner  as  the  trustees  may 
think  mOst  conducive  to  the  interests  of  each  respectively. 

It  seems  that  the  statute  of  uses  of  Virginia  does  not  apply 
to  the  uses  created  by  devise,  and  transfers  such  uses  into  pos- 
session of  the  cestui  que  use. 

In  the  case  of  Jones  vs.  Tatum,  19  Grat.,  720,  decided  May 
23,  1870.  T.  conveyed  to  H.  B.  and  J.  B.  ninety  acres  of  land 
in  trust  for  his  wife  for  life,  and  at  her  death  to  their  children, 
with  a  power  of  appointment  by  will  to  the  wife,  which  she  did 
not  make.  After  the  death  of  T.  and  his  wife,  four  of  their 
children,  being  of  age,  file  their  bill  against  the  other  two,  who 
were  infants  of  the  age  of  seventeen  and  nineteen  years,  asking 
for  a  sale  of  the  land.  There  was  a  decree  directing  the  land 
to  be  sold,  and  it  was  sold  partly  on  a  credit,  and  the  sale  was 
confirmed.  The  purchaser  having  failed  to  make  the  last  pay- 
ment, a  rule  was  made  on  him  to  show  cause  why  the  land 
should  not  be  sold  to  pay  the  balance  of  the  purchase-money. 
He  appeared  and  filed  an  affidavit  objecting  to  the  title — that 
the  trustees,  H.  B.  and  J.  B.,  had  not  been  parties  to  the  suit, 
and  that  there  was  but  eighty-nine  acres  of  land.  J.  B.,  de- 
scribing himself  as  surviving  trustee,  executed  a  release  deed, 
which  was  filed  in  the  suit.  A  sale  was  decreed,  and  the  pur- 
chaser appealed. 

Qucere :  Whether  under  the  Virginia  statute  of  uses,  the  trust 
having  ended,  the  legal  title  was  in  the  trustees?  But  if  it  was, 
and  they  should  have  been  parties,  the  sale  having  been  made 
and  confirmed,  and  the  purchaser  in  quiet  possession,  the  deed 
of  release  of  the  surviving  trustee  cured  the  defect. 

In  the  case  of  Redd  and  Wife  vs.  Dyer  et  als.,  83  Va.,  331,  de- 
cided May,  1887,  it  was  held :  The  maxim  caveat  emptor  strictly 
.-applies  to  judicial  sales.  Purchaser's  objections  must,  ordi- 
larily,  be  made  before  the  sale  is  confirmed.     But  the  pur- 


234  Citations  TO  the  Code  of  Virginia. 

chaser  is  entitled  to  relief  on  the  ground  of  after-discovered 
mutual  mistake  of  material  facts,  or  of  fraud,  which  must  be 
clearly  proved. 

Section  2428. 

In  the  case  of  Claytor  vs.  Anthony,  6  Eand.,  285  (on  p.  307-8),. 
decided  March,  1828,  it  was  held :  This  section  embraces  all  de- 
scriptions of  property  when  the  cestui  qui  trust  has  an  imme- 
diate equitable  right  to  the  possession  and  enjoyment  of  the 
property. 

In  the  case  of  Coutts  vs.  Walker,  2  Leigh,  268,  decided  June, 
1830,  it  was  held :  A  judgment  creditor  has  a  lien  in  equity  on 
the  equitable  estate  of  the  debtor  in  hke  manner  as  he  has  a. 
lien  at  law  on  his  legal  estate. 

In  the  case  of  Findlay  vs.  Toncray,  2  Rob.,  374,  decided  Au- 
gust, 1843.  Under  a  deed  of  trust  conveying  land,  with  gene- 
ral warranty  to  secure  debts,  the  land  is  sold  for  more  than 
enough  to  pay  the  debts.  The  purchaser  instituted  a  proceed- 
ing against  the  grantor  for  unlawful  detainer,  and  obtains  a 
judgment  against  him,  and  then  the  purchaser  insists, ^7*5-^,  that 
he  was  not  bound  to  pay  his  purchase-money  (and  therefore 
cannot  be  charged  with  interest  on  the  same)  until  he  obtained 
possession ;  and  second,  that  he  may  retain  part  of  the  surplus 
of  the  purchase-money  to  pay  the  costs  recovered  by  the  judg- 
ment on  his  complaint  for  unlawful  detainer.  The  claims  of 
the  purchaser  are  objected  to  by  a  creditor  of  the  grantor,  who 
obtained  a  decree  against  him  after  the  deed  of  trust,  and  sued 
out  an  elegit  within  a  year.  Held :  The  claims  so  made  by  the 
purchaser  cannot  be  allowed. 

The  purchaser  further  claims  to  apply  other  parts  of  the  sur- 
plus to  extinguish  a  dower  right  in  the  property  existing  at  the 
time  of  the  warranty,  and  to  pay  taxes  assessed  on  the  property 
before  the  sale  was  made.  Held  :  These  claims  also  must  be 
disallowed. 

In  the  case  of  Armstrojig,  Cator  (&  Co.  vs.  Lachman,  84  Va., 
726,  decided  April  17,  1888,  it  was  held :  While  no  rule  can  be 
laid  down  as  to  the  extent  of  evidence  required  to  set  aside  a 
conveyance  as  fraudulent,  it  must  satisfy  the  chancellor's  con- 
science, and  it  may  be,  and  generally  must  be  circumstantial. 

Section  2429. 
In  the  case  of  Eowton  vs.  Eowton^  1  H.  &  M.,  92,  decided 
November  5,  1806,  the  court  said :  Under  the  act  of  1785,  giv- 
ing a  widow  dower  in  a  trust  estate,  it  seems  that  she  is  entitled 
to  dower  in  an  equitable  estate  in  fee-simple  contracted  by  ver- 
bal agreement,  to  be  conveyed  to  her  late  husband,  provided  the 
contract  be  proved  to  be  such  as  would  authorize  a  court  of 
equity  to  decree  the  legal  estate. 


Citations  to  the  Code  of  Virginia.  235 

In  the  case  of  Claiborne  vs.  Henderson,  3  H.  <fe  M.,  322,  de- 
cided March,  1809,  it  was  held  :  Before  our  act  of  Assembly  (of 
1785,  which  took  eifect  the  l&rst  day  of  January,  1787)  giving 
a  widow  dower  of  a  trust  estate,  she  was  not  dowable  of  an 
equitable  estate. 

In  the  case  of  Heth  vs.  Cocke  et  ux.,  1  Rand,  344,  decided 
March,  1823,  it  was  held  :  A  widow  is  not  entitled  to  dower  of 
real  estate  which  had  been  mortgaged  by  her  husband  before 
the  marriage.  The  only  claim  of  the  widow  in  such  a  case  is  to 
dower  in  the  equity  of  redemption.  The  same  principle  applies 
as  well  to  mortgages  after  marriage,  where  the  wife  unites  in  the 
mortgage,  and  has  been  privily  examined,  as  to  mortgages  be- 
fore marriage. 

In  the  case  of  WJieatley' s  Heirs  vs.  Calhoun,  12  Leigh,  264, 
decided  April,  1841.  By  articles  between  C.  and  W.,  they  agree 
to  make  a  joint  purchase  of  land,  and  to  divide  the  same  be- 
tween them  by  a  designated  line,  W.  to  pay  the  whole  purchase- 
money  of  the  whole  land  to  the  vendor  thereof,  and  C.  to  pay 
W.  the  purchase-money  for  his  part  at  a  certain  appointed  time ; 
within  the  time  C.  pays  to  W.  the  greater  part,  but  not  the  whole 
of  the  purchase-money  for  his  part  of  the  land ;  and  then,  also, 
within  the  time  the  contract  between  C.  and  W.  is  rescinded, 
W.  agreeing  to  take  back  C.'s  part  of  the  land,  upon  condition 
that  C.  have  credit  on  another  account  for  the  money  he  has 
paid ;  and  C.  dies,  never  having  been  let  into  possession  of  the 
land  so  by  him  agreed  to  be  purchased  and  paid  for.  Held : 
That  as  the  contract  between  C.  and  W.  was  wholly  executory, 
and  was  rescinded  before  C.  had  completed  payment  of  the 
purchase-money,  and  he  had  never  had  legal  or  equitable  pos- 
session, he  had  no  such  equitable  estate  as  that  his  widow  was 
dowable  thereof. 

In  the  case  of  Deering  cfe  Co.  vs.  Kerf  oof  s  Executor  et  als.,  89 
Va.,  491,  decided  December  15,  1892,  it  was  held:  Land  bought 
with  partnership  funds,  for  partnership  purposes,  is  so  far  con- 
sidered as  personality,  that  widow  of  deceased  partner  is  not 
entitled  to  dower  therein,  but  only  to  her  distributive  share 
thereof. 

In  the  case  of  Fickliris  Administrator  vs.  liixey,  89  Va.,  832, 
decided  April  6,  1893,  it  was  held:  Wife's  right  of  dower, 
whether  inchoate  or  consummate,  is  an  existing  lien,  and  a  cov- 
enant against  encumbrances  is  broken  by  its  existence.  This 
lien  is  inferior  to  all  which  attached  prior  to  the  marriage,  but 
superior  to  those  acquired  after  marriage  without  her  consent. 

Such  settlements  on  a  wife  for  value  are  valid  in  equity, 
though  void  at  common  law,  and  relinquished  of  her  right  of 
(lower  is  a  good  consideration  to  the  extent  of  its  value  as 
against  the  husband's  creditors. 


236  Citations  to  the  Code  of  Vibqinia. 

In  the  case  here,  as  the  value  of  the  dower  relinquished  ex- 
ceeded that  of  the  land  settled  on  the  wife,  she  and  her  heirs 
at  law,  after  her  death,  were  entitled  to  the  land  free  from  all 
liabiUty  for  her  husband's  debts. 

Section  2430. 

In  the  case  of  Deloney  vs.  Hutcheson,  2  Eand.,  183,  decided 
December,  1823,  it  was  held :  Where  parties  purchase  an  estate 
jointly  for  the  purposes  of  their  trade,  it  is  considered  in  equity 
as  an  estate  in  common  in  England ;  and  in  Virginia,  where  the 
jus  accrescendi  is  abolished,  it  is  so  considered  in  law  as  well  as 
equity.  Therefore,  a  surviving  partner  can  have  no  other  claim 
against  real  estate  held  in  partnership  than  any  other  cred- 
itor has. 

In  the  case  of  Pierce's  Administrator  vs.  Trigg's  Heirs,  10 
Leigh,  406  (2d  edition,  423),  decided  July,  1839,  it  was  held: 
Where  land  is  purchased  by  two  partners  for  partnership  pur- 
poses with  partnership  funds,  and  is  used  as  part  of  the  stock 
in  trade,  a  court  of  equity  deems  such  lands  partnership's  pro- 
perty ;  and  though,  if  the  conveyance  has  been  made  to  both 
partners,  their  will,  upon  the  death  of  one,  passes  to  his  heirs  a 
legal  title,  yet  the  whole  beneficial  interest  devolves  upon  the 
survivor,  and  he  may  sue  the  heirs,  compel  a  sale,  and  dispose 
of  the  proceeds  as  he  would  dispose  of  the  personal  estate  of 
the  firm. 

In  the  case  of  Wheatley's  Heirs  vs.  Calhoun,  12  Leigh,  264, 
decided  April,  1841.  By  articles  between  C.  and  W.,  they 
agree  to  join  in  the  purchase  of  mills  and  two  hundred  acres  of 
land  adjoining,  and  that  in  case  the  purchase  shall  be  eflfected, 
C.  shall  keep  the  mills  at  a  salary  to  be  paid  out  of  the  joint 
concern,  and  that  "  the  improvements,  privileges,  expenses,  and 
profits  shall  in  all  respects  be  equal  to  both  parties  and  their 
legal  representatives."  They  make  the  purchase  accordingly ; 
the  mills,  etc.,  are  conveyed  to  them  jointly ;  they  give  their 
joint  bonds  for  the  purchase-money,  payable  in  four  annual  in- 
stalments, and  a  joint  mortgage  of  the  property  to  secure  pay- 
ment of  the  same,  and  then  commence  and  carry  on  the  busi- 
ness of  millers  in  partnership  for  several  years.  The  first  in- 
stalment is  paid  out  of  the  social  funds,  and  the  residue  of  the 
purchase-money  out  of  money  borrowed  on  the  credit  of  the 
partnership,  but  repaid  to  the  lenders  by  W.  alone  after  C.'s 
death.  Held :  Though  C.  and  W.  were  partners  in  the  milling 
business  carried  on  by  them  at  the  mills  so  purchased,  yet  the 
mills,  etc.,  were  not  social  property  or  stock,  but  real  estate,  pur- 
chased by  C.  and  W.  individually,  of  which  one  was  a  tenant  in 
common  with  the  other  of  an  undivided  moiety,  and  therefore 
C.'s  widow  is  dowable  of  his  moiety. 


Citations  to  the  Code  of  Virginia.  237 

In  the  case  of  Thornton  vs.  Thornton,  3  Rand.,  179,  decided 
February,  1825,  it  was  held :  An  estate  given  to  husband  and 
wife  is  not  joint  tenancy,  and  therefore  not  affected  by  our  act 
of  Assembly  concerning  joint  rights  and  obligations.  In  such 
an  estate  each  party  takes  the  entirety,  and  the  survivor  takes 
the  whole,  not  by  survivorship,  but  by  virtue  of  the  original 
conveyance. 

In  the  case  of  Norman! s  Executrix  vs.  Cunningham  and  Wife 
et  als.,  5  Grat.,  63,  decided  April,  1848.  Mrs.  W.  and  Miss  T., 
as  tenants  in  common,  hold  the  equitable  title  to  a  tract  of  land 
by  wan-ant,  survey  and  possession.  N.  marries  Miss  T.,  and 
then  buys  Mrs.  W.'s  moiety  of  the  land,  and  a  patent  issues  for 
the  whole  tract  to  N.  and  his  wife,  T.  T.  dies  in  1805,  leaving 
several  children.  After  her  death  N.  sells  the  land  to  hona  fide 
purchasers  without  notice,  and  conveys  to  them  with  general 
warranty.  He  marries  a  second  time,  and  dies  in  1838,  leaving 
a  widow  and  children  by  both  of  his  wives,  and  devises  and  be- 
queathes to  them  a  large  estate.  After  the  death  of  N.,  the  chil- 
dren of  his  first  wife,  T.,  file  their  bill  against  his  executrix, 
claiming  compensation  from  the  estate  of  N.  for  the  moiety  of 
the  tract  which  had  belonged  to  their  mother,  T. ;  and  they 
charge  that  the  sales  and  conveyances  were  to  hona  fide  pur- 
chasers without  notice.  The  executrix  answers,  not  admitting 
the  facts,  and  calling  for  proof.  Held  :  Under  the  patent,  N. 
and  his  wife,  T.,  each  took  the  entirety  of  the  tract  of  land,  with 
the  chance  of  excluding,  by  survivorship,  the  heirs  of  the  other. 
Though  the  patent  vested  the  legal  estate  of  the  entire  tract  in 
N.  and  his  wife,  which,  upon  her  death,  survived  to  him  alone, 
yet  her  equitable  estate  in  an  undivided  moiety  was  not  thereby 
defeated,  but  descended  to  her  heirs  at  her  death,  subject  to  N.'s 
life  estate  as  tenant  by,  the  curtesy. 

Section  2432. 
In  the  case  of  T'oth  vs.  Robertson,  78  Va.,  46,  decided  No- 
vember 22,  1883,  it  was  held  :  This  section  should  be  construed 
as  remedial  and  liberal,  and  therein  the  word  "estate"  is  held 
to  be  used  in  its  most  extended  sense,  and  as  meaning  the  pro- 
perty or  thing  given  by  the  deed  or  will,  and  not  merely  the  in- 
terest therein,  so  as  to  promote  the  policy  of  the  legislature, 
which  was  to  remove  those  fetters  upon  alienation  which  con- 
tingent limitation,  more  or  less,  tend  to  fasten.  Under  that,' 
statute  circuit  courts  have  jurisdiction  to  sell  and  make  good 
title  to  real  estate  devised  to  one  for  life,  and  remainder  to  his 
children  or  descendants,  if  any,  at  his  death,  and  if  none,  then 
remainder  to  the  children  or  descendants  of  another,  if  any  such 
be  living  at  the  former's  death. 


238  Citations  to  the  Code  of  Virginia. 

Section  2434. 
In  the  case  of  Pierce! s  Administrator,  vs  Trigg,  10  Leigh,  423, 
it  was  held :  The  decree  against  an  infant,  though  it  gives  him 
a  day  in  court  to  answer,  is  of  the  nature  of  a  final  decree,  and 
is  carried  into  execution  as  such ;  nor  is  it  reversible  but  for 
error,  or  fraud,  or  collusion. 

CHAPTER  CVIII. 

Section  2440. 

In  the  case  of  Mxckie  vs.  Lawrence,  Executor  of  Wood,  5  Ran- 
dolph, 571,  decided  August,  1827,  it  was  held :  No  set  form  of 
words  is  necessary  to  constitute  a  lease ;  and  a  contract  between 
two  persons,  that  one  should  have,  during  the  life  of  the  other, 
land,  negroes,  etc.,  he  paying  therefor  a  stipulated  annual  sum, 
is  not  a  sale,  but  a  rent.  Such  a  contract  does  not  lose  its 
character  of  a  rent  by  slaves  and  other  personal  property  being 
included  in  the  contract. 

Interest  cannot  be  recovered  as  of  course  in  an  action  for  the 
recovery  of  rent,  but  may  be  given  under  circumstances  to  be 
judged  by  the  jury. 

Section  2441. 

In  the  case  of  Clark  vs.  Moore  [Trustee,  etc.),  76  Va.,  262  and 
265.  2.  Case  here :  Father  conveyed  property  in  trust  to  secure 
two  debts  to  son  and  to  trustee  of  his  wife,  by  deed  in  statutory 
form,  giving  no  priority.  One  of  the  debts  secured  to  son 
arose  out  of  a  judgment  against  father,  prior  to  deed,  in  favor 
of  a  third  person,  which  son  had  paid,  but  no  assignment 
thereof  had  been  made.  It  was  only  referred  to  in  the  deed  as 
an  execution  against  father,  which  son  had  paid.  Upon  ques- 
tioning whether  this  was  entitled  to  priority,  held : 

1.  It  is  not.     All  three  of  the  debts  must  be  paid  pari  passu. 

2.  But  even  if  this  judgment  had  been  the  property  of  son 
by  bona  fids  purchase  for  value,  and  a  lien  on  the  land  when  it 
was  conveyed,  son  lost  his  priority  by  unequivocally  accepting 
the  deed ;  recognLzed  no  priority,  as  attested  by  his  execution 
thereof. 

Section  2442. 

In  the  case  of  Lane  vs.  Tidhall,  1  Va.  (Gilmer),  130,  decided 
November  2,  1820,  it  was  held :  A  court  of  equity  should  enjoin 
a  sale  by  trustees,  where  the  title  to  the  property  is  disputed, 
and  full  value  could  not  probably  be  had  for  it,  even  if  that 
fact  was  known  to  all  the  parties  to  the  deed  when  executed. 

In  the  case  of  Chowning  vs.  Cox  et  al.,  1  Rand.,  306,  decided 
February,  1823,  it  was  held :  When  a  conveyance  of  real  estate 
is  made  to  a  creditor,  in  trust  to  satisfy  his  own  demand,  such 


Citations  to  the  Code  op  Virginia.  239 

conYeyance  is  not  to  be  considered  as  a  deed  of  trust,  but  as 
a  mortgage,  to  which  the  right  of  redemption  is  incident.  But 
if  a  sale  is  made  by  the  creditor  under  these  circumstances,  and 
the  grantor  comes  into  a  court  of  equity  for  relief,  the  court  will 
not  decree  in  his  favor,  unless  he  makes  the  purchaser  under 
the  sale  a  party. 

In  the  case  of  Taylor's  Administrators  and  Devisees  vs.  Chown- 
ing,  3  Leigh,  654,  decided  March,  1832,  it  was  held :  Though  a 
mortgage  be  made  to  secure  a  debt,  and  power  being  therefore 
given  to  the  mortgagee  to  sell  the  subject  to  pay  the  debt,  the 
mortgagee  cannot  execute  the  power,  the  character  of  creditor 
and  trustee  in  such  case  being  incompatible ;  yet  if  the  mort- 
gagee, in  fact,  execute  the  power  fairly,  and  make  sale  of  the 
subject  for  cash,  and  if  the  mortgagor  be  apprised  of  the  sale, 
and  be  present  at  it,  and  make  no  objection  to  the  mortgagee's 
proceedings,  but,  on  the  contrary,  acquiesce  in  them,  he  shall  be 
regarded  as  waiving  his  objection  to  the  defect  of  the  mort- 
gagee's power  to  sell,  so  far  as  the  purchaser  is  concerned,  and 
shall  not  be  allowed  in  equity  to  redeem  as  against  the  pur- 
chaser. 

In  the  case  of  Hutchison  et  als.  vs.  Kelly,  1  Rob.,  148-154 
(2d  edition,  131).  The  policy  of  the  statute  of  13  Eliz.,  chapter 
5  (substantially  adopted  in  the  act  of  Virginia  to  prevent  frauds 
and  perjuries),  investigated  by  Baldwin,  J.,  and  the  true  prin- 
ciple declared  by  him  to  be,  that  a  fraudulent  intent  of  the 
grantor  against  one  or  more  creditors  is  fraudulent  against  all, 
and  that  no  distinction  exists  between  prior  and  subsequent  cre- 
ditors other  than  that  which  arises  from  the  necessity  of  show- 
ing a  fraudulent  intent  against  some  creditor,  which  cannot  be 
done  in  behalf  of  creditors  not  in  existence  at  the  time  of  the 
conveyance,  but  by  proving  either  a  prior  indebtedness  or  a 
prospective  fraud  against  them  only. 

A  father  made  a  deed,  whereby,  in  consideration  of  natural 
love  and  affection,  he  conveyed  to  his  four  children,  who  were 
infants,  living  with  him,  all  of  his  property,  both  real  and  per- 
sonal. He  had  another  child  afterwards.  The  real  property 
was  transferred  to  the  grantees  on  the  commissioner's  books, 
and  the  taxes  charged  to  them.  But  the  taxes  were  paid  by  the 
father,  who  continued  to  reside  on  the  lands  and  cultivate  them, 
and  to  use  the  personal  property  as  his  own.  A  small  part  of 
the  land  was  sold  by  him  after  the  deed.  One  of  the  tracts  of 
land  conveyed  by  the  deed  was  afterwards  levied  upon  and  sold 
under  an  execution  at  the  suit  of  the  Commonwealth  against  the 
father  for  money  for  which  he  was  liable  as  sheriff.  The  father 
was  still  residing  on  the  land  at  the  time  of  the  sale ;  and  on  the 
day  of  the  sale  the  father  and  one  of  the  sons  offered  to  sell  the 


1 


240  Citations  to  the  Code  of  Virginia. 

land  and  make  a  good  title  ;  but  the  son  forbade  the  sale  by  the 
sheriff.  The  purchaser  from  the  sheriff  obtained  possession  by- 
virtue  of  a  judgment  against  the  father  upon  a  complaint  for 
unlawful  detainer ;  and  then  ejectment  was  brought  against  the 
purchaser  by  the  grantees,  all  of  whom  were  infants  at  the  time 
of  the  sheriff's  sale.  In  the  action  of  ejectment  a  special  ver- 
dict was  returned,  finding  the  foregoing  facts,  and  also  the  addi- 
tional fact  that  the  deed  made  by  the  father  to  his  children  was 
executed  for  the  purpose  of  avoiding  a  liability  to  which  he 
might  be  subjected  in  consequence  of  being  the  surety  of  a 
deputy  sheriff.  Held  :  The  deed  made  by  the  father  is  void  as 
to  his  creditors,  and  the  purchaser  at  the  sherifl"s  sale  is  entitled 
to  hold  the  tract  of  land  so  purchased  by  him.  But  it  appear- 
ing that  the  Commonwealth  was  satisfied  by  the  proceeds  of 
that  tract  of  land,  and  the  conveyance  by  the  sheriff  being  not 
only  of  that  tract,  but  of  another,  which  was  neither  levied  upon 
nor  sold,  held,  further  :  The  conveyance  by  the  sheriff  presents 
no  obstacle  to  a  recovery  by  the  lessors  of  the  plaintiff  of  the 
last  mentioned  tract. 

In  the  case  of  Floyd  ys,.  Harrison  et  als.,  2  Rob.,  161,  decided 
July,  1843,  it  was  held  :  A  deed  is  made,  whereby,  after  reciting 
that  F.,  the  grantor,  hath  sold  to  H.,  the  grantee,  for  the  sum 
of  two  hundred  dollars,  certain  real  and  personal  estate,  it  is 
witnessed  that  the  grantor,  in  consideration  of  that  sum,  con- 
veys the  same  to  grantee,  and  then  the  deed  concludes  as  fol- 
lows :  "  It  is  agreed  and  fairly  understood  by  and  between  the 
said  F.  and  H.  that  in  case  the  said  H.,  or  his  heirs  or  assigns, 
shall  not  be  able  to  make  the  aforesaid  two  hundred  dollars  out 
of  the  estate  hereinbefore  conveyed,  that  then  the  said  F.  shall 
refund  the  same  to  the  said  H.,  or  his  heirs  or  assigns,  with  law- 
ful interest  thereon  from  this  date  till  paid,  or  such  part  of  the 
said  two  hundred  dollars  as  the  said  H.  shall  not  be  able  to 
realize  as  aforesaid."  Under  the  authority  of  this  deed,  the 
grantee  sells  and  conveys  the  estate,  and  his  grantee  again  sells 
and  conveys  the  same ;  after  which,  to-wit,  about  ten  years 
after  the  date  of  the  first  mentioned  deed,  the  grantor  in  that 
deed  files  a  bill  in  equity  to  redeem  the  estate  conveyed.  Held  : 
The  bill  cannot  be  sustained. 

In  the  case  of  Rossett  vs.  Fisher  et  als.,  11  Grat.,  492,  decided 
July,  1854,  it  was  held  :  Eeal  estate  is  conveyed  in  trust  to  se- 
cure debts.  The  grantor  in  the  deed  has  at  the  time  but  an 
equitable  title,  and  the  principal  creditor  secured  by  the  deed 
having  become  the  purchaser,  and  the  grantor  being  absent  at 
the  time,  and  the  money  to  pay  the  debts  having  been  for- 
warded to  his  agent  at  the  place  of  sale,  and  being  at  the  time 
in  the  post-office  at  the  place  and  not  delivered  to  the  agent, 


Citations  to  the  Code  of  Virginia.  241 

though  in  the  expectation  of  receiving  it,  he  having  several 
times  appHed  at  the  office  for  a  letter,  a  court  of  equity  will  not 
set  aside  the  sale. 

The  references  to  28  Grat.,  815  and  822,  are  errors. 

In  the  case  of  Shultz  et  als.  vs.  Ilanshrough,  33  Grat.,  567, 
decided  October  2,  1880,  it  was  held,  pp.  576-77  :  If  a  trus- 
tee in  pais,  with  power  to  make  sale  of  real  estate  for  the  pay- 
ment of  debts,  attempts  to  make  sale  while  there  is  a  cloud  rest- 
ing on  the  title  to  the  property,  or  there  is  any  doubt  or  uncer- 
tainty as  to  the  debts  secured,  or  the  amounts  thereof,  or  a  dis- 
pute or  conflict  among  the  creditors  as  to  their  respective 
claims,  a  court  of  equity,  on  a  bill  filed  by  any  person  having  an 
interest,  will  restrain  the  trustee  until  these  impediments  to  a 
fair  sale  have  by  its  aid  been  removed,  so  far  as  it  is  practicable 
to  do  so.  And  so,  if  the  aid  of  the  court  is  invoked  in  the  first 
instance  to  enforce  the  incumbrances  on  land,  a  decree  for  a 
sale  without  first  ascertaining,  settling  and  determining  what 
incumbrances  are  chargeable  on  the  property,  the  amounts 
thereof  respectively,  and  the  order  in  which  they  are  so  charge- 
able, would  be  premature  and  erroneous. 

In  the  case  of  Clarke  vs.  Wells  [Adtninistrator),  6  Grat.,  475, 
decided  January,  1850.  The  sale  by  an  administrator  of  his 
intestate's  efiPects,  though  upon  a  credit,  must  be  treated  at  law 
as  a  conversion  thereof.  There  is  an  exception  to  this  rule  in 
equity,  when  upon  a  settlement  between  proper  parties  of  the 
administration  of  the  administrator  it  appears  that  the  collec- 
tion of  such  sale  bonds  by  his  personal  representative  is  un- 
necessary for  the  reimbursement  or  indemnity  of  his  decedent's 
estate,  and  may  therefore  be  confided  as  unadmiuistered  assets 
to  the  administrator  de  bonis  non. 

W.,  administrator  of  C,  sells  assets  on  a  credit,  and  dies  in- 
debted to  his  intestate's  estate.  A  purchaser  at  the  sale  quali- 
fies as  administrator  de  honis  non  of  C.  Held :  The  proceeds 
of  sale  not  being  necessary  for  the  reimbursement  or  indemnity 
of  C.'s  estate,  his  administrator  shall  be  enjoined  from  proceed- 
ing to  collect  the  debt  from  the  administrator  de  honis  non 
of  C,  but  he  shall  hold  it  as  unadmiuistered  assets  of  his  in- 
testate. 

In  the  case  of  Ilogan  vs.  Duke  et  als.,  20  Grat.,  244,  decided 
January,  1871,  it  was  held :  It  is  improper  in  a  trustee,  in  a  deed 
to  secure  a  debt,  to  made  a  sale  so  long  as  it  remains  uncertain 
what  amount  is  due  on  account  of  the  debt,  and  if  the  amount 
due  is  uncertain,  or  if  credits  properly  applicable  thereto  be  not 
so  applied,  it  is  his  duty  before  making  a  sale  to  ascertain  the 
amount  to  be  raised  by  the  sale,  and  to  bring  a  suit  in  chancery 

I  procure  a  settlement  by  a  commissioner  for  that  purpose,  if 


242  Citations  to  the  Code  of  Virginia. 

necessary,  or  if  it  fails  to  do  this  the  debtor  may  do  it  and  in 
the  meantime  enjoin  the  sale. 

On  a  bill  to  enjoin  a  sale  of  land  by  the  trustee,  the  answer 
denies  all  the  grounds  of  equity  stated  in  the  bill,  and  there  is 
no  proof  to  sustain  them.  The  court  may  dissolve  the  injunc- 
tion, and  have  the  sale  made  and  the  proceeds  distributed  under 
its  direction.  In  such  case,  the  trustee  having  been  declared  a 
bankrupt,  it  was  especially  proper  for  the  court  to  retain  the 
cause,  and  have  the  trust  administered  under  its  direction,  and 
to  require  the  trustee  to  give  security  for  the  faithful  perform- 
ance of  his  duties.  The  decree  for  the  sale  of  the  property 
should  be  according  to  the  terms  of  the  deed. 

It  was  proper  to  allow  compensation  for  the  services  of  an 
auctioneer  in  making  the  sale  ordered  by  the  court,  and  also  the 
expense  of  a  former  advertisement  of  the  sale  of  the  property 
by  the  trustee,  which  had  been  enjoined  by  the  debtor  and  the 
injunction  dissolved. 

Though  the  court  decreed  an  account  involving  a  few  items 
to  a  small  amount,  it  was  not  error  to  direct  the  payment  of  so 
much  of  the  debt  secured  by  the  deed  as  might  be  safel}^  paid, 
leaving  enough  to  meet  any  possible  amount  which  could  be  re- 
ported as  due  on  that  account  to  the  debtor. 

The  reference  to  76  Va.,  715,  is  an  error. 

In  the  case  of  Griffins  Executors  vs.  Macauley's  Administra- 
tors, 7  Grat.,  476,  decided  May  11, 1851.  A  person  named  trus- 
tee in  a  deed  to  secure  debts,  unites  in  sales  necessary  to  the 
execution  of  the  trust,  and  other  formal  acts,  but  he  receives 
none  of  the  trust  funds,  they  being  received  by  his  co-trustee ; 
and  he  is  guilty  of  no  fraud  in  relation  thereto.  Held :  He  is 
not  responsible  for  the  misapplication  or  waste  of  the  funds  by 
his  co-trustee.  Trustee  not  responsible  for  estimated  rents  when 
he  has  received  none,  when  his  delay  in  selling  the  property 
arose  out  of  the  difficulty  of  finding  a  purchaser. 

The  reference  to  9  Grat.,  341,  is  an  error. 

In  the  case  of  Womack  vs.  Paxtons  Executors,  84  Va.,  9,  de- 
cided September,  1887,  it  was  held :  Where  but  part  of  the 
price  is  ever  collected,  commissions  should  be  allowed  only  on 
the  part  collected,  and  no  extra  compensation  is  allowable  for 
extraordinary  efforts  to  sell  the  lands. 

In  the  case  of  Midler's  Administrators  vs.  Stone,  84  Va.,  834, 
decided  May  3,  1888,  it  was  held :  Where  there  is  a  cloud  on 
the  title,  uncertainty  as  to  the  debts  secured,  or  the  amounts 
thereof,  or  a  dispute  as  to  priorities,  the  aid  of  equity  may  be 
invoked  by  any  person  interested  to  enjoin  a  sale  under  trust 
deed  until  such  impediments  to  a  fair  sale  are  removed.  But 
unless  some  such  impediments  exist,  it  is  not  the  duty  of  the 


Citations  to  the  Code  of  Virginia.  243 

trustee,  in  every  case  where  there  are  liens  on  the  trust  subject, 
to  invoke  the  aid  of  equity  before  making  sale  in  pais. 

In  the  case  of  Alexander  vs.  Howe,  85  Va.,  198,  decided  Au- 
gust 9,  1888.  Trustee  advertised  land  for  sale  under  trust  deed. 
Owner  enjoins  sale  on  the  ground  of  usury  and  the  pendency  of 
suit  to  partition  the  tract  whereof  this  was  an  undivided  part. 
The  circuit  court  perpetuated  the  injunction  as  to  the  usury  and 
dissolved  it  as  to  the  residue  of  the  debt,  and  decreed  that  the 
trustee  proceed  to  sell  the  land  and  report  to  court.  The  trus- 
tee, ascertaining  that  there  were  several  liens  on  the  land,  sold 
it  free  of  liens,  and  reported  that  fact  to  the  court,  and  asked 
that  an  account  of  liens  be  taken  before  the  proceeds  were  dis- 
bursed. Held :  The  sale  was  a  judicial  sale,  and  was  premature 
and  erroneous,  in  that  it  was  ordered  before  the  liens  were 
ascertained  by  the  court,  it  appearing  that  liens  existed. 

In  the  case  of  Orr  vs.  Chandler,  86  Va.,  938,  decided  June  19, 

1890,  it  was  held :  Where  land  conveyed  in  trust  to  secure  a 
bond  is  required  by  the  trust  deed  to  be  sold  for  cash,  and  by 
consent  of  the  owner  of  the  land  it  is  sold  on  credit  at  the  in- 
stance of  the  surety  on  the  bond,  who  is  one  of  the  purchasers 
at  the  sale.  Held :  The  latter  cannot  complain  of  the  change  of 
the  terms  of  sale. 

In  the  case  of  Miller  vs.  Mann,  88  Va.,  212,  decided  July  2, 

1891,  it  was  held  :  Where  the  trustee  in  a  deed  which  prescribes 
no  terms  other  than  those  prescribed  by  this  section,  sells  the 
trust  property  in  accordance  with  the  provisions  of  said  section, 
such  sale  is  valid,  though  he  sells  only  half  thereof,  it  being 
sufficient  to  satisfy  the  debts  secured  thereon,  and  the  debtor 
not  requiring  the  sale  of  more. 

In  the  case  of  Morrlss  vs.  Virginia  State  Insurance  Company, 
18  Southeastern  Reporter,  843,  decided  December  7,  1893,  it 
was  held :  While  it  is  a  compliance  with  a  deed  of  trust  requir- 
ing a  notice  of  ten  days  at  the  least  to  insert  the  advertisement 
on  Sunday,  the  4th,  for  a  sale  on  the  15th,  when  the  circum- 
stances warrant  equity  in  taking  charge  of  the  sale,  the  court 
should  prescribe  a  notice  of  at  least  thirty  days,  not  only  in 
the  newspaper,  as  directed  by  the  deed,  but  by  handbills. 

Where  a  deed  of  trust  contains  no  provision  as  to  the  place 
of  the  sale,  this  matter  is  in  the  discretion  of  the  trustee,  and  if 
neither  party  is  satisfied  with  his  decision  he  may  apply  to 
equity  for  instructions  prior  to  sale. 

AVhere  a  deed  of  trust  covering  property  on  the  outskirts  of 
Richmond  contained  no  provision  as  to  the  place  of  sale,  and 
the  trustee  selected  the  City  Hall  in  Richmond,  on  the  debtor's 
objection  that,  if  the  sale  were  made  on  the  property  it  would 
<;ommand  a  higher  price,  the  debtor's  wishes  should  be  respected. 

A  deed  of  trust  directing  a  sale,  but  not  requiring  in  terms  a 


244  Citations  to  the  Code  of  Virginia. 

subdivision,  should  be  construed  in  reference  to  Code  1873, 
Chapter  113,  Section  6,  requiring  the  trustee,  in  case  of  default, 
"  to  sell  the  property  conveyed  by  the  deed,  or  so  much  thereof 
as  may  be  necessary,"  and  if  the  land  will  bring  a  better  price 
by  sale  in  lots,  and  the  owner  so  requests  it,  and  the  trustee  re- 
fuses, the  owner  may  control  the  trustee,  in  the  exercise  of  his 
discretion  in  equity.  Trustees  in  deeds  of  trust  must  act  in 
person  and  not  by  agent. 

Section  2446. 

In  the  case  of  Ralston  vs.  Mill&r,  3  Band.,  44,  decided  No- 
vember, 1824,  it  was  held :  A  court  of  equity  will  not  interfere 
to  prevent  the  payment  of  the  purchase-money  of  land,  unless 
the  title  to  the  land  is  questioned  by  a  suit  either  prosecuted  or 
threatened,  or  unless  the  purchaser  can  show  clearly  that  the 
title  is  defective. 

In  the  case  of  RaiidoljplCs  Administratrix  vs.  Kinney  et  als.^ 
3  Rand.,  394,  decided  March,  1 825,  it  was  held :  A  real  cove- 
nant cannot  operate  so  as  to  pass  to  an  assignee  of  land,  unless 
the  vendor  has  a  capacity  to  convey  the  land  itself,  to  which 
the  covenant  is  incident. 

In  the  case  of  Thrdkeld^s  Administrator  vs.  FitzhugKs  Ex- 
ecutor, 2  Leigh,  451,  decided  December,  1830.  Upon  a  sale  of 
land  by  T.  to  B.,  the  vendor  covenants  for  himself,  his  heirs, 
executors,  and  administrators,  to  warrant  the  land  to  B.,  his 
heirs  and  assigns ;  B.  is  evicted  and  brings  covenant  for  breach 
of  this  warranty.  Held:  The  proper  measure  of  damages  is 
the  purchase-money,  with  interest  from  the  date  of  the  actual 
eviction,  the  cost  incurred  in  defending  the  title,  and  such 
damages  as  the  vendee  may  have  paid,  or  may  be  shown  to  be 
clearly  hable  to  pay,  to  the  person  who  evicted  him.  But, 
though  the  purchase-money,  with  interest,  etc.,  was  held  to 
give  the  proper  measure  of  damages  in  the  particular  case,  the 
opinions  of  the  judges  leave  it  still  questionable  whether  the 
actual  value  of  the  land  at  the  time  of  sale,  if  proved  to  be- 
greater  than  the  purchase-money,  with  the  interest,  &c.,  may 
not  be  justly  demanded. 

In  the  case  of  TaWs  Administrator  vs.  Bhiford,  4  Leigh, 
132,  decided  January,  1833.  In  a  deed  of  bargain  and  sale  of 
lands  the  bargainer  covenants  as  follows :  "  And  the  said  T. 
doth  hereby  covenant,  for  himself  and  his  heirs,  to  and  with  the 
said  B.,  that  he,  said  T.,  will  warrant  and  forever  defend  to  the 
said  B.,  his  heirs  and  assigns,  the  title  to  the  said  parcels  of 
land  against  all  persons  whatever."  Held  :  This  covenant  was 
not  a  mere  warranty  real,  but  was  a  personal  covenant,  upon 
which  an  action  of  covenant  lay  for  the  bargainee,  on  being 
evicted,  against  the  administrator  of  the  bargainor. 


I 


Citations  to  the  Code  of  Virginia.  245 

In  the  case  of  Feazle  vs.  Dillard,  5  Leigh,  30,  the  case  of 
Ralston  vs.  Miller,  3  Rand.,  44,  quoted  supra,  is  cited  and 
approved,  obiter  dicttim. 

In  the  case  of  Miller  vs.  Argyle's  Executor  et  als.,  5  Leigh,  460, 
decided  November,  1834,  it  was  held :  A  vendee  of  land  exe- 
cutes a  deed  of  trust  of  the  same  land  to  secure  the  payment  of 
the  purchase-money.  If  there  is  any  doubt  as  to  the  title  of 
the  land,  or  any  part  thereof,  equity  will  enjoin  the  trustees 
from  selling  the  land,  or  at  least  such  part  thereof  as  to  which 
the  title  is  doubtful,  to  satisfy  the  debt. 

In  the  case  of  Koger  et  als.  vs.  Kanes  Administrator,  5  Leigh, 
606,  decided  July,  1833,  it  was  held  :  In  Virginia  equity  will 
enjoin  the  collection  of  the  purchase-money  of  land  on  the 
ground  of  defect  of  title  after  vendee  has  taken  possession  un- 
der conveyance  from  vendor  with  general  warranty,  if  the  title 
is  questioned  by  a  suit,  either  prosecuted  or  threatened,  or  if 
the  purchaser  can  show  clearly  that  the  title  is  defective.  But 
when  A.  sells  and  conveys  land  to  B.  with  general  warranty,  and 
then  B.  sells  and  conveys  to  C.  such  title  as  A.  has  conveyed  to 
him,  equity  will  not  give  C.  relief  against  B.  on  the  ground  of 
defect  of  title,  because  C.  purchased  of  him  only  A.'s  title  ;  nor 
give  him  relief  against  A.,  for  A.  has  no  claim  against  C.  which 
he  can  be  enjoined  from  enforcing. 

In  the  case  of  Beale  vs.  Seiveley  et  als.,  8  Leigh,  658,  decided 
August,  1837,  it  was  held :  Where  a  vendee  is  in  possession  of 
land  under  conveyance  with  general  warranty,  and  the  title  has 
not  been  questioned  by  any  suit,  prosecuted  or  threatened,  such 
vendee  has  no  claim  to  relief  in  equity  against  the  payment  of 
the  purchase-money  unless  he  can  show  a  defect  of  title,  re- 
specting which  the  vendor  was  guilty  of  fraudulent  misrepre- 
sentation or  concealment,  and  which  the  vendee  had  at  the  time 
no  means  of  discovering. 

In  the  case  of  Long's  Executor  vs.  Israel,  9  Leigh,  556,  de- 
cided December,  1838.  A.,  in  consideration  of  a  certain  price 
per  acre  to  be  paid  him  by  B.,  undertakes  to  procure  C,  who  is 
in  possession  of  a  tract  of  land  as  the  owner  thereof,  to  make  a 
good  deed  for  the  same  to  B.,  with  general  warranty.  A.  pur- 
chases the  land  from  C,  pays  him  the  purchase-money,  and  di- 
rects him  to  make  the  conveyance  to  B.,  which  is  made  accord- 
ingly, with  general  waiTanty.  B.  executes  to  A.  his  notes  for 
the  price  agreed  upon  between  them,  and  takes  possession  of 
the  land,  which  he  holds  without  eviction  or  disturbance. 
Held  :  Equity  will  not  enjoin  A.  from  collecting  the  money  due 
him  by  B.,  whatever  be  the  defects  of  C.'s  title  to  the  land.  No 
eviction  or  disturbance  of  B.'s  possession  having  taken  place, 
defect  of  title  is  no  ground  for  his  coming  into  equity  against  C. 

In  the  case  of  Sutton  vs.  Sutton,  7  Grat.,  234,  decided  Feb- 


246  Citations  to  the  Code  of  Yirginia. 

ruary  17,  1851,  it  was  held :  A  mistake  iu  respect  to  tlie  title  to 
land  is  no  ground  for  relief  to  a  purchaser  where  he  purchases 
the  land  without  an  agreement,  express  or  implied,  for  a  convey- 
ance with  warranty  of  the  title.  A  trustee  to  sell,  selling  such 
property,  and  such  title  only  as  is  vested  in  him,  according  to 
the  terms  prescribed,  and  without  warranty  or  fraud,  incurs  no 
responsibility  to  the  purchaser.  The  object  of  the  trust  being 
to  sell  for  what  the  property  will  bring,  and  there  being  no  war- 
ranty by  the  grantor  of  either  title  or  quantity,  the  purchaser  is 
not  entitled  to  relief  for  a  mistake  in  the  estimated  quantity  of 
land. 

In  the  case  of  Clarke  vs.  Ilardgrove,  7  Grat.,  399,  decided 
May  11,  1851.  H.  sells  land  to  C,  and  conveys  to  him  with 
general  warranty,  and  C.  assigns  to  H.  the  bonds  of  S.  in  pay- 
ment of  the  purchase-money.  The  title  to  a  part  of  the  land  is 
afterwards  discovered  to  be  fatally  defective.  Held :  C.  may 
enjoin  H.  from  collecting  so  much  of  the  bond  of  S.  ^s  w  ill  com- 
pensate him  for  the  land  to  which  the  title  is  defective.  C.  is 
entitled  to  compensation  according  to  the  relative  value  of  the 
land  to  which  good  title  cannot  be  made.  H.  should  be  di- 
rected to  perfect  the  title  by  a  day  specified  by  the  court,  and  if 
he  failed  to  do  so,  a  commissioner  should  be  directed  to  ascer- 
tain the  relative  value  of  the  part  of  the  tract  to  which  the  title 
is  defective. 

In  the  case  of  Dickinson  vs.  Hoomeds  Administrator  et  als.,  8 
Grat.,  353,  decided  January,  1852.  There  is  a  devise  to  J.  with 
a  limitation  over,  upon  his  dying  without  issue,  at  his  death  to 
his  brother  B.,  if  he  should  survive  him,  or  his  representatives, 
and  R.  dies  in  the  lifetime  of  J.  J.  sells  and  conveys  the  land 
to  A.,  and  R.,  though  he  does  not  convey  the  land,  is  a  party  to 
the  deed,  and  J.  and  R.  covenant  as  follows  :  That  the  said  J., 
for  himself  and  his  heirs,  and  the  said  R.,  as  contingent  de^dsee 
under  the  will  of  Col.  J.,  by  whom  said  land  was  devised  to  J., 
do  hereby  covenant  and  agree  with  the  said  A.  that  they  will 
warrant  and  defend  the  fee-simple  estate,  etc.,  to  said  land,  to 
him  and  his  heirs  forever,  against  the  claim  of  themselves  and 
their  heirs,  and  the  claim  of  any  person  claiming  under  them 
by  virtue  of  the  will  aforesaid,  and  do  relinquish  and  fully  con- 
firm to  said  A.  all  the  right  they  or  theii-s  now  have  or  may 
hereafter  have  to  said  land,  or  any  part  thereof,  to  him  and  his 
heirs,  free  from  the  claims  of  the  said  J.  and  R.  and  their  heirs, 
and  of  all  other  persons  in  the  whole  world.  Held  :  That  this 
f^^^°?°*  of  ^-  extends  to  the  claim  of  his  children  to  the  land, 
though  they  claim  not  as  his  heirs,  but  as  devisees  under  the 
•t\.  ^^  ^1°^'  ^' '  *^^*  *^^  covenant  of  R.  is  a  covenant  running 
with  the  land,  and  a  purchaser  claiming  under  A.  a  portion  thereof 


Citations  to  the  Code  of  Virginia.  247 

by  a  regular  chain  of  conveyances  is  entitled  to  the  benefit  of 
said  covenant  for  his  indemnity  against  said  claim  ;  that  the 
children  of  R.,  having  inherited  from  him  lands  in  Kentucky, 
and  as  by  the  laws  of  that  State  lands  descended  may  be  sub- 
jected to  the  payment  of  the  debts  of  the  ancestor,  and  the  heir 
is  bound  by  such  a  covenant  of  warranty  by  the  ancestor,  a 
court  of  equity  in  the  State  of  Virginia  may  compel  the  children 
of  R.  residing  within  the  jurisdiction  to  account  for  any  lands 
in  Kentucky  descended  to  them  as  his  heirs  as  a  trust  subject 
for  the  payments  of  his  debts  ;  and  under  the  circumstances  of 
this  case  the  power  should  be  exerted. 

Under  the  circumstances  of  the  case,  the  heirs  are  held 
bound  to  account  for  only  so  much  of  the  Kentucky  lands  as 
they  have  actually  gotten  or  may  get  possession  of,  with  the 
rents  and  profits  derived  therefrom,  deducting  the  cost  and  ex- 
pense of  recovering  the  lands. 

In  the  case  of  Peers  vs.  Barnett  et  als.,  12  Grat.,  410  and  416, 
decided  May  21,  1855,  it  was  held :  Land  is  purchased  by  the 
acre,  but  after  the  survey  is  commenced  the  vendee  agrees  to 
take  it  at  the  quantity  for  which  the  vendors  hold  it,  and  the 
survey  is  stopped.  He  is  concluded  by  his  agreement,  and  is 
not  entitled  to  an  abatement  from  the  purchase-money  on  ac- 
count of  a  deficiency  in  the  quantity. 

In  the  case  of  Faulkner  vs.  Davis,  18  Grat.,  651,  decided 
May  3,  1868,  it  was  held,  p.  661 :  If  the  purchaser  be  in- 
formed of  a  defect  in  a  title,  yet  still  accept  it,  with  a  covenant 
of  general  warranty,  and  be  evicted,  he  is  still  bound  to  pay  the 
purchase-money.     His  remedy  for  the  recovery  is  at  law. 

In  the  case  of  Click  et  als.  vs.  Green  cfe  Sadler,  11  Va.,  827, 
decided  October  18,  1883.  The  fixed  rule  as  to  the  measure  of 
damages  to  which  vendee  is  entitled  upon  a  breach  of  warranty 
of  title  is  the  amount  of  purchase-money  paid  by  him,  with  in- 
terest from  the  date  of  his  eviction  from  the  land.  C.  and  S., 
being  jointly  in  possession  as  joint  owners  of  land,  jointly  sell 
the  same  to  G.  and  S.,  and  convey  it  to  them.  In  their  deed 
they  say :  "  And  the  said  C.  and  S.  covenant  that  they  will  war- 
rant generally,"  etc.  Held :  This  is  a  joint  and  several  war- 
ranty, and  both  warrantors  are  responsible  to  the  vendees,  upon 
their  eviction,  for  the  payment  of  the  full  measure  of  the  damagfes. 

In  the  case  of  Sheffey's  Executor  vs.  Gardiner,  79  Va.,  313, 
decided  August  14,  1884,  it  was  held:  When  premises  are  in 
actual  possession  of  third  party,  under  paramount  title  at  date 
of  conveyance,  it  is  unnecessary  either  to  aver  or  to  prove 
actual  entry  or  eviction  in  action  for  breach  of  warranty  of  title 
to  land.  Because  deed  recites  that  "immediate  possession  is 
delivered,"  and  declaration  avers  no  eviction,  covenantee  is  not 
thereby  estopped  to  deny  that  he  got  possession. 


248  Citations  to  the  Code  of  Virginia. 

The  rule  as  to  the  measure  of  damages  to  which  vendee  is 
entitled  upon  a  breach  of  warranty  of  title  is  the  amount  of 
purchase -money  paid  by  him,  with  interest  from  date  of  eviction. 

In  the  case  of  Marbury  et  als.  vs.  Tliornton,  82  Va.,  702,  de- 
cided December  16,  1886,  it  was  held :  Covenants  of  warranty 
of  title  run  with  the  land  for  the  protection  of  the  owner  in 
whose  time  the  breach  occurs.  But  to  constitute  such  breach 
plaintiff  must  be  evicted,  or  prevented  from  taking  possession 
by  another  in  possession  under  a  paramount  title.  Declaration 
not  averring  that  the  plaintiff  was  evicted,  or  kept  out  of  pos- 
session by  one  in  possession  under  paramount  title,  is  bad  on 
demurrer. 

This  is  the  case  cited  as  11  Virginia  Law  Journal,  226. 

In  the  case  of  Ahernathy  vs.  Phillips,  82  Va.,  769,  decided 
January  13,  1887,  it  was  held:  Kemedy  of  vendee  for  loss  of 
land  paid  for  by  him,  and  conveyed  to  him  by  vendor  with  war- 
ranty of  title,  is  by  action  at  law,  and  the  measure  of  recovery 
is  the  purchase  price,  with  interest  from  date  of  eviction. 

This  case  is  cited  as  11  Virginia  Law  Journal,  313. 

Section  2449. 

In  the  case  of  Brook  vs.  Barton,  6  Munf.,  306,  decided  Feb- 
ruary 25,  1819,  it  was  held :  Upon  a  covenant  to  make  a  good 
title  to  certain  lots  of  land  (according  to  a  plat  for  extending 
the  streets  of  a  town),  including  the  use  of  the  streets,  and  ap- 
purtenances therein  mentioned,  and  that  the  covenantee,  his 
heirs  and  assigns,  may  at  all  times  thereafter  enter  into,  pos- 
sess, and  enjoy  the  said  lots,  with  the  streets,  etc.,  without  the 
let,  hindrance  or  molestation  of  the  covenantor,  his  heirs  and 
assigns,  a  court  of  equity,  by  injunction,  will  compel  the  cove- 
nantor, his  heirs  and  assigns,  to  remove  all  obstructions  by  them 
put  in  the  said  streets,  and  open  the  same  to  the  free  and  full 
use  of  the  covenantee,  his  heirs  and  assigns,  and  permit  him 
and  them  thereafter  to  use  the  same  without  let,  hindrance  or 
molestation. 

Section  2455. 

In  the  case  of  Ross  vs.  Overton,  3  Call,  309  (2d  edition,  268), 
decided  November  8,  1802.  O.  leased  a  mill  and  premises  to 
K.,Vho  covenanted  to  leave  it  in  repair.  The  mill  during  the 
term  was  carried  off  by  ice.  Held:  R.  is  bound  to  pay  the 
rents  and  perform  the  covenants. 

In  the  case  of  Newton  vs.  Wilson,  3  H.  &  M.,  470,  decided- 
April,  1809,  it  was  held :  Interest  is  not  recoverable  by  way  of 
damages,  in  an  action  of  debt  for  rent  arrears.  In  an  action  of 
debt  for  rent,  the  defendant,  on  a  plea  of  nil  debet,  may  give  in 
evidence  any  special  circumstance  showing  the  rent  ought  to  be 
apportioned. 


Citations  to  the  Code  of  Virginia.  249 

A  lease  was  made  of  a  mill,  together  -witli  a  tract  of  land  ad- 
joining, and  a  black  man  as  miller,  for  a  term  of  years,  render- 
ing an  annual  rent ;  the  miller  had,  previously  to  the  lease,  been 
emancipated  by  the  lessor,  by  a  deed  entered  of  record,  and  be- 
fore the  expiration  of  the  first  year,  left  the  services  of  the 
lessee.  It  was  held  that  the  lessee  was  entitled  to  an  appor- 
tionment of  the  rent. 

In  the  case  of  Maggort  vs.  JIansharger,  8  Leigh,  532,  decided 
July,  1837.  A  lease  is  made  of  a  lot  of  land,  with  all  the  ap- 
purtenances thereto  belonging,  for  four  years,  and  the  defendant 
agrees  to  pay  the  plaintiff  twenty-two  dollars  a  year;  at  the  ex- 
piration of  the  four  years  to  return  the  property  to  the  plaintiff 
with  all  of  its  appurtenances.  On  the  premises  there  were,  at 
the  time  of  the  lease,  a  grist-mill  and  a  carding-machine,  which 
during  the  time  were  consumed  by  fire,  either  accidentally  or  by 
some  incendiary.  Held :  The  contract,  according  to  its  fair  mean- 
ing, could  not  be  considered  as  binding  the  tenant  to  rebuild. 

In  the  case  of  Thompson  vs.  Pendall,  12  Leigh,  591,  decided 
Aiigust,  1841,  it  was  held,  page  601 :  In  the  lease  of  a  mill, 
lessee  covenants  to  keep  up  repairs  of  the  mill,  except  heavy 
repairs,  such  as  if  the  dam  or  fore-bay  should  be  injured  by 
high  water,  or  if  the  main  shaft  or  wheel  should  give  away  so 
as  to  require  a  new  one ;  in  this  case  it  is  to  be  repaired  by  the 
lessor  in  a  reasonable  time,  and  the  lessor  is  not  to  lose  the 
rent  if  he  should  go  to  do  the  work  according  to  the  contract. 
The  mill  is  wholly  destroyed  by  fire  during  the  term,  and  the 
lessor  fails  and  refuses  to  rebuild  the  same.  Held :  The  rent  is 
suspended  from  the  time  of  such  destruction  of  the  demise 
premises. 

In  the  case  of  McCandlish  vs.  Keene  et  als.,  13  Grat.,  615,  de- 
cided February  3,  1857,  it  was  held :  Deed  conveys  grantor's 
life  estate  in  land,  all  live  stock  upon  the  place,  farming  imple- 
ments, carriage  and  horses,  household  and  kitchen  furniture  as 
it  stands,  and  in  a  number  of  slaves  ;  also  the  grantor's  interest 
in  the  reversion  in  the  property  derived  from  three  of  her  chil- 
dren, who  had  died  since  the  death  of  their  father,  and  a  num- 
ber of  slaves  absolutely,  in  consideration  of  "a  sum  of  money, 
and  that  grantee  shall  support  the  grantor  for  life ;  and  in  the 
event  of  the  grantee's  death  in  the  lifetime  of  the  grantor,  his 
estate  shall  pay  her  three  hundred  dollars  a  year  during  her  life 
for  her  board,  etc.,  and  let  her  have  a  maid-servant,  if  she  lived 
out  of  his  family  ;  but  if  she  lived  in  his  family,  then  she  should 
have  her  choice  of  the  maid-servants  of  his  estate  to  wait  on 
her,  one  room  in  the  house  and  its  furniture  for  life,  and  should 
receive  one  hundred  and  fifty  dollars  a  year  during  her  life  to 
purchase  clothing,  etc.  The  grantor  has  no  lien  upon  the  pro- 
perty conveyed  for  the  annuity. 


250  Citations  to  the  Code  of  Vibginia. 

In  the  case  of  Scott's  Executrix  vs.  Scott,  18  Grat.,  150,  164^ 
and  175,  decided  January,  1868.  E.  owns  an  estate  for  her  life 
in  property,  both  real  and  personal,  including  slaves,  and  S. 
owns  the  remainder  in  fee  therein  ;  and  E.  and  her  trustee  enter 
into  a  contract,  called  by  the  parties  a  lease,  by  which  they  con- 
vey to  S.  the  Hfe  estate  of  E.  in  the  whole  of  the  property,  and 
S.,  in  consideration  thereof,  undertakes  to  pay  E.  annually  for 
her  life  seven  hundred  dollars  as  rent,  and  to  pay  all  taxes  and 
legal  charges  on  the  estate ;  and  the  usual  remedies  for  the  re- 
covery of  these  annual  sums  were  reserved,  S.  was  put  into 
possession  of  the  property,  and  held  and  treated  it  as  his  own. 
Held :  Though  the  instrument  was  called  a  lease,  and  the  sum& 
reserved  were  called  a  rent,  the  contract  was  a  sun*ender,  and 
the  life  estate  of  E.  was  merged  in  the  estate  of  S.  The  instru- 
ment not  being  under  seal,  it  was  not,  as  to  the  land,  an  express 
surrender,  but  it  was  a  contract  for  a  surrender,  which  was  car- 
ried out  by  the  parties  by  the  delivery  of  possession  and  the 
payment  of  money  under  it,  and  it  therefore  has  all  the  legal 
eflfect  of  an  express  surrender  by  deed.  As  to  the  personal  pro- 
perty, no  deed  was  necessary.  The  slaves  having  been  eman- 
cipated by  the  proclamation  of  the  President  of  the  United 
States,  this  does  not  entitle  S.  to  any  abatement  from  the 
amount  of  the  annual  payments  which  he  contracted  to  make. 

In  the  case  of  N.  White  et  als.  vs.  Stuart,  Buchanan  &  Co.y 
76  Va.,  546,  563  and  564. 

Idem — Abatement. — In  the  absence  of  an  express  covenant  to 
pay  rent,  a  tenant  is  not  liable  for  the  same  where  the  premises 
are  destroyed,  whatever  the  rule  may  be  in  the  case  of  such  ex- 
press covenant. 

The  Code  refers  to  the  report  of  the  revisors  of  the  Code  of 
1849.  That  report  cites  the  case  of  Overton  vs.  Ross,  3  Call^ 
309,  above  cited,  and  other  previous  foreign  cases,  as  a  reason 
for  passing  an  act  substantially  the  same  as  this  one. 

In  the  case  of  the  Postal  Telegraph-Cable  Company  vs.  Nor- 
folk and  Western  Railroad  Company,  87  Va.,  349,  decided  Jan- 
uary 22,  1891,  it  was  held  :  Judgment  obtained  by  telegraph 
company  appointing  commissioners  to  fix  a  just  compensation 
for  the  land  of  a  railroad  company,  proposed  to  be  taken  for  the 
purpose  of  the  former  in  condemnation  proceedings,  is  not  finals 
and  is  appealable. 

Section  2456. 
In  the  case  of  M.  Clenahan  vs.  Gwynn,  3  Munf.,  556,  de- 
cided November  16,  1811,  it  was  held:  A  person  assigning  a 
lease  for  value  received,  but  without  any  special  agreement  to 
be  responsible  for  the  title,  is  not  bound  to  restore  the  purchase- 
money,  upon  the  eviction  of  the  assignee,  in  consequence  of  a 
defect  in  the  lessor's  title,  especially  when  the  lessor  has  not 


Citations  to  the  Code  op  Virginia.  251 

been  previously  resorted  to,  or  shown  to  be  insolvent,  and  when 
the  possibility  of  the  eviction  was  in  contemplation  of  both  the 
parties  at  the  time  of  the  assignment.  When  a  lease  is  assigned, 
and  the  assignee  is  evicted  through  a  defect  in  the  lessor's  title^ 
he  may  sue  the  lessor  for  compensation. 

In  the  case  of  Black  vs.  Gilmore,  9  Leigh,  446,  decided  July, 
1838,  it  was  held :  When  a  conveyance  is  of  a  freehold  estate, 
words  of  lease  do  not  amount  to  a  covenant  for  quiet  enjoyment. 

A  declaration  in  covenant  sets  forth  that  the  defendant,  by 
an  indenture,  did  rent  and  lease  to  the  plaintiff  a  tract  of  land, 
to  have  and  to  hold  the  same  so  long  as  the  plaintiff  should 
live;  and  it  avers  as  a  breach  of  the  covenant  that  the  de- 
fendant entered  upon  the  possession  of  the  plaintiff,  and  ex- 
pelled and  removed  him.  Held :  On  general  demurrer,  that  no 
covenant  for  quiet  enjoyment  is  to  be  implied  from  the  words 
set  forth,  and  that  the  action  cannot  be  maintained. 

CHAPTEE  CIX. 

Section  2458. 

In  the  case  of  Starke's  Executors  vs.  Littlepage,  4  Rand.,  368, 
decided  June,  1826,  it  was  held:  Parol  evidence  is  admissible 
to  impeach  evidence  under  seal  on  the  ground  of  fraud.  The 
rule  in  pari  delicto  potior  est  conditio  defendentis  does  not  apply 
where  the  policy  of  the  law  requires  that  a  fraudulent  or  vicious 
conveyance  should  be  enforced ;  and  therefore,  where  a  debtor 
makes  a  fraudulent  conveyance  of  his  property  for  the  purpose 
of  protecting  it  from  his  creditors,  the  fraudulent  grantee  may 
enforce  such  conveyance  in  a  court  of  law,  and  the  debtor  will 
not  l)e  allowed  to  defeat  the  claim  by  proving  the  fraud.  De- 
cided by  two  judges  out  of  three. 

In  the  case  of  James  vs.  Bird's  Administrator,  8  Leigh,  510, 
decided  July,  1837,  it  was  held:  A  party  who,  to  hinder  and 
delay  his  creditors,  fraudulently  conveys  his  land  to  another, 
cannot,  except  under  peculiar  circumstances,  maintain  a  bill  to 
rescind  the  contract ;  the  grantor  and  grantee  being  generally  in 
pari  delicto,  neither  is  entitled  to  come  into  equity. 

In  the  case  of  2'errell  vs.  Imhoden  et  als.,  10  Leigh,  321  (2d 
edition,  332),  decided  July,  1839,  it  was  held :  The  obligee  in  a 
bond  secured  by  a  deed  of  trust  makes  a  deed  transferring  the' 
bond  and  deed  of  trust  for  the  benefit  of  his  creditors.  After- 
wards, at  the  request  of  the  obligor,  the  obligee  signs  a  receipt, 
stating  that  on  the  da}-^  of  the  date  thereof  he  received  the 
amount  of  the  bond.  The  bond  was,  in  fact,  executed  without 
consideration,  and  the  receipt  was,  in  fact,  given  without  any 
payment.  The  creditors  for  whose  benefit  the  bond  was  assigned 
had  no  notice  of  its  being  without  consideration  until  after  the 


252  Citations  to  the  Code  of  Virginia. 

assignment ;  but  the  obligor  knew  of  the  assignment  when  he 
took  the  receipt.  In  a  suit  between  the  obligor  and  those 
claiming  under  the  assignment,  an  injunction,  awarded  to  re- 
strain the  sale  of  the  property  conveyed  to  secure  the  bond,  was 
dissolved,  and  the  court  of  appeals  affirmed  the  order  of  disso- 
lution. 

In  the  case  of  Owen  vs.  Sharp  and  Wife  et  als.,  12  Leigh, 
427,  decided  November,  1841.  One  makes  a  fraudulent  bill  of 
sale  of  a  female  slave,  absolute  on  its  face,  in  order  to  protect 
the  property  from  his  creditors,  but  there  is  a  secret  trust  that 
the  grantee  shall  hold  the  property  for  the  benefit  of  the  gran- 
tor's daughters.  Held:  The  daughters  cannot  establish  the 
secret  trust  in  equity  and  have  a  decree  for  the  slave,  her  in- 
crease and  profits. 

A  fraudulent  bill  of  sale  is  made  of  a  female  slave,  absolute 
on  its  face,  with  a  secret  trust  for  the  grantor's  daughters,  of. 
whom  the  grantee  becomes  guardian  in  1827,  and  in  1829  he 
settles  his  guardianship  accounts,  both  wards  having  then  at- 
tained to  full  age.  They  then  set  up  a  claim  to  the  property, 
which  the  grantee  denies  to  be  just,  and  in  1837  they  file  a  bill 
to  establish  the  secret  trust.  Held :  The  statute  of  limitations 
would  alone  be  a  bar  to  the  bill. 

In  the  case  of  Hariris  vs.  Harris's  Executor,  23  Grat.,  737,  de- 
cided September,  1873.  In  a  debt  on  bonds  by  the  executor  of 
H.  against  G.,  G.  tenders  a  special  plea  that  at  the  time  of  the 
execution  of  said  bonds  he  owed  nothing  to  G.,  and  the  con- 
sideration of  said  bonds  was  as  follows :  In  1866  four  !5uits  at 
law  were  pending  against  him  in  the  county,  naming  plaintiffs, 
to  recover  damages  for  trespass  during  the  civil  war  in  impress- 
ing horses,  etc.,  by  him  under  orders  of  the  Confederate  govern- 
ment, he  being  an  officer  of  the  army  under  that  government. 
He  did  not  regard  these  claims  as  debts  or  just  liabilities  on  his 
part,  but  owing  to  the  unfavorable  and  unjust  constitution  of 
courts  and  juries  at  that  time,  he  feared  they  might  be  enforced 
against  his  property.  He  was  informed  by  his  counsel  that  the 
result  was  uncertain ;  that  judgment  had  been  given  in  similar 
cases  in  Berkeley  county;  then  he  conferred  with  his  father, 
who  warmly  advised  him  to  secure  his  property  against  these 
claims.  The  plan  adopted  was  for  him  to  execute  to  his  father 
the  bonds  sued  out  on,  antedated  with  the  distinct  understand- 
ing that  they  were  only  to  be  used  and  treated  as  obligations  to 
claim  priority  over  the  plaintiffs  in  case  of  necessity,  and,  if  unne- 
cessary, were  to  be  handed  back  to  the  defendant.  Said  bonds 
were  executed  under  this  understanding,  and  upon  no  other 
consideration.  Wherefore  said  G.  and  his  executor  were  bound 
to  deliver  said  bonds  to  defendant,  because  said  suits  had  been 
dismissed  in  1867,  before  the  death  of  G. ;  and  the  bonds  were 


Citations  to  the  Code  of  Virginia.  253 

therefore  mill  and  void,  and  to  be  surrendered.  Therefore  he 
has  sustained  damages,  etc.  On  the  motion  of  the  plaintiff,  the 
plea  was  rejected.  Held  :  The  plea  was  properly  rejected,  be- 
cause no  issue,  either  by  general  or  special  replication,  could  be 
made  upon  it.  •  It  was  not  good  as  a  plea  under  the  statute  for 
failure  of  consideration.  The  statute  only  applies  to  cases 
where  the  consideration  was  originally  valuable,  and  not  where 
there  was  no  consideration.  Such  a  defence  cannot  be  made  to 
a  specialty,  either  at  common  law  or  under  the  statute.  The 
seal  imports  a  consideration,  and  a  party  cannot  avoid  it  upon 
the  ground  of  a  want  of  consideration.  The  plea  is  not  good, 
on  the  ground  that  the  facts  stated  would  entitle  him  to  relief  in 
equity,  because  his  ground  of  relief  is  his  own  fraud.  The 
averment  of  his  fears  that  the  courts  and  juries  would  not  do 
him  justice  could  not  avail  him,  as  the  court  must  presume  that 
no  injustice  could  be  perpetrated  in  regular  legal  proceedings 
had  in  the  forum  where  such  proceedings  were  pending.  It  is 
not  a  good  plea  at  common  law,  because  it  is  emphatically  of 
the  class  in  which  the  maxim,  "  nemo  allegans  suara  iurpitudi- 
nem  audiendiis  est,''  applies  with  full  force.  This  case  does  not 
come  within  the  maxim  "■in pari  delicto  potior  est  condito  de- 
fendentis." 

There  is  a  marked  distinction  between  contracts  which  are 
void  ah  itiitio  and  contracts  which  are  void  as  to  third  persons, 
but  are  valid  between  the  parties. 

Where  the  contract  is  void  ab  initio,  when  it  appears  either 
by  the  allegation  of  the  plaintiff  or  by  a  proper  plea  of  the  de- 
fendant, that  the  contract  is  so  void,  the  court  will  not  lend  its 
aid  either  to  enforce  it  on  the  one  hand  or  give  relief  on  the 
other.  Though  the  bonds  are  void  as  to  creditors,  they  are 
valid  between  the  parties,  and  therefore  they  will  be  enforced 
by  the  courts. 

In  order  to  apply  correctly  the  rule  potior  est  conditio  de- 
fendentis^  it  is  necessary  to  consider  not  who  is  plaintiff  or  who 
is  defendant,  but  by  whom  the  fraud  is  alleged  or  sought  to  be 
made  a  ground  of  defence  or  recovery. 

Upon  the  question  whether  a  fraudulent  contract  shall  or 
shall  not  be  enforced,  there  is  no  distinction  between  an  execu- 
ted or  an  executory  contract. 

A  party  claiming  damages  for  the  acts  of  another  must  be  re- 
garded in  law  as  much  the  creditor  of  that  other  as  one  holding 
his  bonds  or  other  promises  to  pay. 

A  special  plea  of  nan  est  J"  act  am,  which  admits  the  execution 
and  delivery  of  the  bonds  sued  on,  but  avers  that  they  were  to 
be  delivered  to  the  defendant  when  he  should  request  it,  is  not 
a  good  plea. 

In  the  case  of  Montgomery  vs.  Rose,  1  Patton  &  Heath,  5, 


254  Citations  to  the  Code  op  Virginia. 

decided  January,  1855.  A.  defrauds  B.  of  certain  slaves,  and 
afterwards  makes  a  deed  conveying  tliem  to  a  trustee  to  secure 
a  debt.  The  trustee  sells  to  C,  for  valuable  consideration,  and 
without  notice  of  the  fraud ;  C.  then  conveys  to  D.  Held  :  D. 
is  entitled  to  hold  against  B.,  whether  he  had  notice  of  the  fraud 
or  not.  In  the  former  case  he  holds  valid  title  under  C. ;  in  the 
latter,*  he  is  himself  a  bona  fide  purchaser,  without  notice  of 

fraud. 

In  the  case  of  Coutts  et  ah.  vs.  Crreenhow,  2  Munf.,  363,  de- 
cided June  7,  1811,  it  was  held:  A  marriage  settlement  on  a 
wife  and  her  children,  by  the  husband,  though  born  in  fornica- 
tion, is  a  conveyance  to  purchasers  for  valuable  considera- 
tion' as  to  the  children  as  well  as  the  wife ;  and  not  void  as  to 
creditors,  no  fraudulent  intention  being  proved. 

In  the  case  of  Herring  et  als.  vs.  Wickham  and  Wife  et  als., 
29  Grat.,  628,  decided  January,  1878,  it  was  held :  If  the  grantee 
in  a  deed  be  a  lona  fide  purchaser  for  valuable  consideration, 
his  or  her  title  is  unassailable,  whatever  may  have  been  the 
motives  or  intentions  of  the  grantor  in  executing  the  deed.  It 
is  absolutely  essential  that  both  parties  shall  concur  in  the 
iraud  to  invalidate  the  deed.  Fraud  cannot  be  presumed;  it 
must  be  proved  by  clear  and  satisfactory  evidence. 

Marriage  is  a  valuable  consideration,  sufficient  to  support  a 
conveyance  of  property,  even  against  creditors,  and  in  such  a 
case  the  wife  is  deemed  a  purchaser  of  the  property  settled  on 
her,  in  consideration  of  the  marriage,  and  is  entitled  to  hold  it 
against  all  the.  world. 

However  much  a  man  may  be  indebted,  an  ante-nuptial  set- 
tlement, made  by  him  in  consideration  of  marriage,  is  good 
against  his  creditors,  unless  it  appears  that  the  intended  wife 
was  cognizant  of  the  fraud;  and  even  though  it  conveys  his 
whole  estate,  it  is  not  simply  on  that  account  void ;  and  when  a 
settlement  is  made  in  contemplation  of  a  marriage,  the  law  pre- 
sumes it  was  an  inducement  to  it,  and  the  courts  cannot  assume 
the  contrary  to  be  the  fact. 

The  fact  of  the  cohabitation  of  the  parties,  and  the  birth  of 
children  before  the  marriage,  will  not  avoid  the  conveyance. 

Coxdts  vs.  Greenhmjo,  2  Munf.,  363,  examined  and  followed. 

In  the  case  of  Triplett  et  als.  vs.  Romine's  Administrator 
etals.,  33  Grat.,  651  and  659,  decided  September,  1880.  M.,  a 
widow,  having  property  settled  by  her  upon  her  former  hus- 
band, purchases  land,  and  borrows  from  K.  money  to  pay  for  it 
in  part.  Being  about  to  marry  again,  she  enters  into  a  mar- 
riage contract  with  her  intended  husband,  T.,  by  which  she  con- 
veys all  her  property,  real  and  personal,  to  a  trustee,  in  trust 
for  the  separate  use  of  herself  and  T.,  and  the  children  of  T. 
by  a  former  marriage ;  the  money  she  borrowed  to  pay  for  the 


I 


Citations  to  the  Code  of  Virginia.  255 

land  still  being  due  and  unpaid.  Held :  The  land  is  liable  to 
pay  the  debt  due  to  R.  as  against  the  children.  R.  files  his  bill 
against  T.  and  his  wife  M.,  to  subject  the  land  to  the  payment 
of  his  debt.  They  answer;  an  account  is  ordered  and  taken, 
fixing  the  amount  of  R.'s  debt  to  some  items,  to  which  T.  ex- 
cepts. After  the  death  of  M.,  and  eight  years  after  the  suit  was 
brought,  the  children  of  T.  file  their  petition  in  the  cause.  R.'s 
administrator  answers  the  petition,  and  the  court  decrees  against 
them.  Held :  They  should  have  been  made  parties,  but  as  their 
case  was  fully  stated  and  investigated  upon  their  petition  and 
the  answer  of  R.'s  administrator,  and  after  the  delay  they  would 
not  allow  to  be  disturbed  the  report  of  the  commissioner,  the 
appellate  court  will  not  reverse  the  decree ;  they  may  be  made 
parties,  if  they  desire  it,  when  the  cause  goes  back. 

In  the  case  of  Clay  vs.  Walter  (&  Co.,  79  Va.,  92,  decided 
May  1,  1884,  it  was  held  :  Whatever  the  design  of  the  grantor, 
a  settlement  on  a  woman  in  contemplation  and  in  consideration 
of  marriage  is  valid,  unless  her  knowledge  of  his  intended  fraud 
is  clearly  and  satisfactorily  proved.  Service  by  the  creditors  of 
the  grantor  of  written  notice  in  accordance  with  the  statute  on 
the  grantee  before  the  marriage  of  his  fraudulent  design  in 
making  the  settlement,  cannot  affect  her  constructively  with 
notice  of  such  design ;  but  her  actual  knowledge  of,  and  actual 
participation  in  that  fraudulent  design,  must  be  clearly  estab- 
lished by  proof. 

In  the  case  of  Garland  vs.  Hives,  4  Rand,  282,  decided  June, 
1826,  it 'was  held  :  A  creditor  who  takes  a  conveyance  from  his 
debtor  to  secure  his  debt,  but  at  the  same  time  inserts  provi- 
sions in  the  deed  to  delay,  hinder,  or  defraud  other  creditors, 
comes  within  the  statute  of  frauds,  and  the  conveyance  is  void. 
So,  likewise,  if  the  grantee  be  privy  to  a  fraudulent  intent  on  the 
part  of  the  grantor,  and  takes  a  deed  to  secure  his  own  debt, 
with  provisions  to  delay,  hinder,  or  defraud  other  creditors,  the 
deed  will  be  void,  although  his  only  motive  was  to  secure  his 
own  debt,  and  the  other  provisions  were  forced  upon  him  by  the 
grantor  as  the  only  means  of  having  his  own  debt  secured. 
Such  a  grantee  will  not  be  considered  as  a  hona  fide  purchaser. 
Under  our  statute  of  frauds,  as  well  as  the  English  statute  of 
13  Eliz.,  a  hona  fide  purchaser  for  value,  having  no  notice  of 
covin,  fraud,  collusion,  etc.,  will  be  protected.  To  vitiate  a 
conveyance  there  must  be  a  fraudulent  design  in  the  grantor, 
and  notice  of  that  design  in  the  grantee. 

In  cases  of  actual  fraud  a  court  of  equity  has  concurrent  ju- 
risdiction with  a  court  of  law  in  remedying  the  fraud.  In  these 
cases  equity  follows  the  law,  and  gives  relief  to  the  same  extent 
as  a  court  of  law.  And  therefore  where  a  creditor  comes  into 
equity  to  set  aside  a  conveyance  tainted  with  actual  fraud,  and 


256  Citations  to  the  Code  of  Virginia. 

the  grantee  had  notice  of  the  fraud,  the  conveyance  shall  be  set 

aside  m  ^0^0.  „    t,,     7  -,    t-  o 

In  the  case  of  Tate  vs.  Liggat  <&  JlaUAews  and  Liggai  <& 
Matthews  vs.  Morgan  et  ah.,  2  Leigh,  84,  decided  March,  1830. 
A  creditor  at  large,  not  having  obtained  judgment  or  decree 
against  his  debtor,  cannot  resort  to  equity  to  set  aside  a  fraudu- 
lent conveyance  of  his  debtor,  though  interference  of  the  court 
be  also  prayed  to  prevent  a  sale  or  removal  of  the  subject, 
and  though  the  subject  be  equitable  estate  not  liable  to  execu- 
tion. 

Deison  mortgages  property  to  secure  a  fair  debt  due  the 
Farmers  Bank  and  a  pretended  debt  to  Tate.  L.  &  M.  bring  a 
suit  in  chancery  impeaching  the  security  provided  by  the  mort- 
gage for  the  pretended  debt  to  T.  as  fraudulent.  Pending  this 
suit  D.  mortgages  not  the  property,  but  his  equity  of  redemp- 
tion in  it,  to  S.  &  Co.,  fair  creditors,  to  secure  a  just  debt  due 
them ;  and  then  L.  &  M.  obtain  a  decree  for  their  claim  against 
D.  Held :  That  S.  &  Co.  purchased  only  what  D.  could  right- 
fully convey,  that  is,  his  equity  of  redemption,  and  took  subject, 
not  only  to  the  fair  debt  due  the  Farmers  Bank,  but  the  pre- 
tended debt  secured  to  T. ;  and  L.  &  M.  being  creditors  by  de- 
cree, and  thus  having  the  right  to  satisfaction  in  preference  to 
the  pretended  creditor,  T.  acquired  a  preference  also  over  the 
second  mortgagees,  S.  &  Co.,  who  were  postponed  by  contract 
to  the  pretended  creditor,  T.  A.,  creditor  at  large,  procuring  a 
mortgage  of  his  debtor's  property,  cannot  claim  as  a  creditor  or 
in  the  double  character  as  creditor  and  j)urchaser,  but  only  as 
purchaser. 

And  per  Green,  J.,  if  A.  make  a  fraudulent  conveyance  for 
valuable  consideration  to  C,  who  has  full  notice  of  the  previous 
fraudulent  conveyance,  the  statute  of  frauds  and  perjuries  does 
not  apply  to  protect  such  a  subsequent  purchaser  against  the 
previous  fraudulent  conveyance ;  nor  upon  the  principles  of 
common  law  can  he  claim  against  the  previous  fraudulent  con- 
veyance whereof  he  had  notice  when  he  purchased. 

In  the  case  of  BrockenbroiigK s  Executrix  et  als.  vs.  Brocken- 
hrough's  Administrator  et  als.,  31  Grat.,  580,  decided  March, 
1879.  A  deed  of  trust  is  given  in  1870  to  secure  a  lo7ia  fide 
debt  of  ten  thousand  dollars,  evidenced  by  four  notes,  payable 
in  one,  two,  three  and  four  years,  and  conveys  a  tract  of  land, 
with  the  crops  then  upon  or  thereafter  grown  upon  the  land, 
until  said  notes  are  fully  paid ;  all  the  stock  of  horses,  mules, 
cattle,  sheep,  and  hogs,  with  the  increase  of  the  same  then  on 
the  said  land  and  thereafter  placed  on  the  same,  and  all  farm- 
ing implements  of  the  said  land.  Held  :  The  deed  is  noi  per  se 
fraudulent  on  its  face.  Qucere :  If  the  crops  thereafter  grown 
upon  the  land,  or  the  increase  of  the  stock,  or  other  stock  or 


Citations  to  the  Code  of  Virginia.  257 

implements  afterwards  put  upon  the  land,  pass  by  the  deed,  and 
will  be  protected  against  subsequent  execution  creditors  ? 

Pending  a  suit  by  judgment  creditors  to  set  aside  a  deed  as 
fraudulent,  the  grantor  makes  a  deed  of  quit-claim  to  his  cre- 
ditor of  all  the  property  conveyed  in  the  deed,  but  the  notes  are 
not  given  up,  nor  is  the  deed  of  trust  released.  Held  :  That 
whether  the  trust  released  depends  upon  the  intention  of  the 
creditor ;  and  in  this  case  it  was  held,  upon  the  evidence,  that 
there  was  no  such  intention. 

A  deed  of  trust,  to  secure  certain  debts,  conveys  certain  real 
estate,  and  the  grantor  reserves  in  it  to  himself  and  his  family, 
all  exemptions  and  property  allowed  by  tlie  Constitution  of  Vir- 
ginia and  all  laws  passed  in  pursuance  thereof,  and  in  addition 
thereto,  all  exemptions  allowed  under  the  bankrupt  laws.  Held : 
The  reservation  is  legal  and  valid. 

L.  brings  an  action  on  a  bond  against  B.,  which  is  on  the 
office  judgment  of  the  court  at  its  March  term,  which  com- 
mences on  the  third  of  the  month,  and  the  office  jiidgment  is 
confirmed  on  the  fifth,  which  is  the  last  day  of  the  term  of  the 
court.  On  the  first  day  of  the  same  term  of  the  court,  B.  goes 
into  court  and  confesses  a  judgment  in  favor  of  S.,  no  suit  hav- 
ing been  instituted  against  B.  by  S.  Held :  The  judgment  in 
favor  of  S.  is  valid,  though  no  suit  had  been  instituted  by  him 
against  B.  ;  that  the  judgment  of  L.  relates  back  to  the  first  day 
of  the  term,  and  the  law  not  regarding  the  fraction  of  a  day, 
both  judgments  stand  as  of  the  same  date. 

In  the  case  of  Williains  et  als.  vs.  Lord  (&  Robinson  et  als., 
75,  Va.  Reports,  390,  decided  March  24,  1881,  it  was  held:  W., 
a  merchant,  conveys  his  stock  of  goods  in  trust  for  the  benefit 
of  such  of  his  creditors  as  shall  accept  the  deed  in  a  prescribed 
time.  A  few  of  the  creditors  accept  the  deed,  but  other  cred- 
itors refuse.  The  creditors  who  accept  the  deed  sell  their  claims 
to  the  wife  of  W.,  and  she  buys  some  goods  and  opens  a  store. 
Whether  or  not  she  may  claim  to  hold  the  money  she  receives 
under  her  contract  as  a  separate  trader  from  the  claims  of  her 
husband's  creditors,  under  the  first  section  of  the  said  act,  she 
is  entitled,  under  the  second  section  of  said  act,  to  all  the  benefits 
of  her  said  contract^  and  to  hold  the  same  free  from  the  claims 
of  her  husband's  creditors. 

In  the  case  of  Davis  vs.  Turner,  4  Grat.,  422,  decided  Jan- 
uary, 1848,  it  was  held:  The  retaining  possession  of  personal 
property  by  the  vendor,  after  an  absolute  sale,  is  prima  facia 
fraudulent ;  but  the  presumption  may  be  rebutted  by  proof. 

In  the  case  of  Forkner  vs.  Stuart,  6  Grat.,  197,  decided  July, 
1849.  On  a  sale  of  slaves,  if  the  possession  does  not  accom- 
pany the  sale,  but  remains  with  the  vendor,  such  retention  of 
the  vendor  is  prima  facia  evidence  of  fraud,  but  is  not  con- 
17 


258  Citations  to  the  Code  of  Virginia. 

elusive ;  and  it  is  liable  to  be  repelled  by  satisfactory  legal  evi- 
dence of  the  fairness  and  good  faith  of  the  transaction. 

C.  makes  an  absolute  bill  of  sale  of  slaves  to  F.,  and  F.  exe- 
cutes to  him  an  obligation  that,  upon  C.'s  producing  evidence  of 
the  payment  of  a  certain  debt  for  which  F.  is  bound  as  surety 
for  W.,  that  he  will  cancel  the  bill  of  sale.  This  is  not  a  mort- 
gage ;  but  the  bond  is  conditional  defeasance. 

In  an  action  on  an  indemnifying  bond,  the  relator  claims 
title  to  the  property  sold  under  a  sale  made  by  one  partner 
without  the  knowledge  or  consent  of  the  other  of  partnership 
property.  The  relator  may  recover  for  the  undivided  interest 
of  the  partner  who  made  the  sale,  under  a  general  allegation  in 
the  declaration  of  his  ownership  of  the  property.  One  partner, 
in  the  absence  and  without  authority  from  his  co-partner,  sells 
partnership  property,  and  executes  a  bill  of  sale  under  seal, 
in  the  name  of  both  to  the  purchaser.  The  sale  is  made  to  pay 
a  pressing  debt  of  the  absent  partner,  and  is  hona  fide  and  for 
whole  value,  and  the  money  is  applied  to  pay  the  debt.  Held : 
That  the  partner,  having  the  authority  by  law  as  partner  to 
sell  partnership  effects,  his  sale  thereof  is  obligatory  upon  and 
passed  the  title  of  the  firm. 

In  the  case  of  Curd  vs.  Miller  {Executor),  7  Grat.,  185,  de- 
cided December  7,  1850,  it  was  held :  The  grantor,  in  an  abo- 
lute  conveyance  of  personal  property,  continuing  in  possession 
thereof  such  continued  possession,  raises  the  legal  presumption 
that  the  sale  was  fraudulent  as  regards  the  creditors  of  the  grantor, 
which  presumption  throws  imperatively  upon  the  grantee  the 
whole  burden  of  proving  the  fairness  and  good  faith  of  the 
transaction  ;  and  that  cannot  be  done  without  sufficient  evidence 
that  the  pretended  sale  was  for  a  fair  and  valuable  considera- 
tion; and  in  the  absence  of  such  evidence,  the  prima  facie 
presumption  becomes  absolutely  and  irresistibly  conclusive.  A 
judgment  having  been  obtained  against  the  grantor  and  his 
surety,  the  surety  may  direct  the  execution  to  be  levied  on  the 
property  so  conveyed,  and  set  up  the  fraud  in  the  conveyance. 

In  the  case  of  Lang  vs.  Lee  et  als.,  3  Eand.,  410,  decided  June, 
1825,  it  was  held :  Where  a  deed  reserves  to  the  grantor  a  power 
inconsistent  with  the  avowed  object  for  which  the  deed  is  made, 
it  will  be  null  and  void  as  against  creditors  and  purchasers. 

In  the  case  of  Sheppards  vs.  Turpin,  3  Grat.,  373,  decided 
January,  1847.  A  property  taken  under  a  deed  of  trust  is 
taken  under  execution  and  sold,  at  the  instance  of  parties  not 
claiming  under  the  trust  deed.  Held :  A  court  of  equity  will  not 
entertain  a  suit  by  the  trustee  or  cestui  que  trust  against  the  pur- 
chasers at  the  sale  under  the  execution  to  recover  the  property ; 
there  being  no  obstacle  in  the  way  of  their  proceeding  at  law. 

Property  conveyed  in  a  deed  of  trust  is  taken  under  execu- 


Citations  to  the  Code  of  Virginia.  259 

tion  and  sold,  and  the  purchasers  remain  in  peaceable  posses- 
sion thereof  for  five  years  before  the  suit  is  instituted  by  the 
trustee  for  cestui  qiie  trust  to  recover  it.  Held :  The  statute  of 
limitations  is  a  bar  to  the  recovery. 

A  reservation  in  a  deed  of  trust  inconsistent  with  the  avowed 
object  of  the  trust,  and  adequate  to  the  defeat  thereof,  renders 
the  deed  fraudulent  and  void  as  to  the  creditors  thereby  post- 
poned. 

In  the  case  of  Spence  vs.  Bagwell,  6  Grat.,  444,  decided  Octo- 
ber, 1849.  A  deed  of  trust  was  held  fraudulent  because  it  re- 
served powers  to  the  grantor  which  were  sufficient  to  defeat  the 
purposes  for  which  the  deed  purported  to  be  given. 

In  the  case  of  Addington  vs.  Ethelridge  {Coroner),  12  Grat., 
436,  decided  May  22,  1855,  it  was  held:  H.,  a  merchant,  con- 
veys to  S.  all  his  stock  of  goods  and  the  store-house  for  the 
current  year  in  trust  to  pay  certain  debts  described  in  the 
deed ;  and  the  deed  provides  that  H.  shall  keep  possession  of 
and  sell  the  stock  of  goods  in  the  usual  line  of  his  trade,  and 
occupy  the  store  until  default  is  made  in  the  payment  of  any  of 
the  debts  secured,  and  until  the  trustee  shall  be  requested  by  any 
of  the  said  creditors  to  close  the  deed  by  a  sale.  The  deed  is 
fraudulent  per  se,  and  void  as  to  the  creditors  of  H. 

In  the  case  of  Perry  &  Co.  vs.  Shenandoah  National  Bank 
et  als.,  27  Grat.,  755,  decided  September,  1876.  In  November, 
1873,  N.  conveyed  to  G.  certain  real  and  personal  estate,  and 
all  his  stock  in  trade,  with  all  accretions  to  and  replenishments 
■of  said  stock,  in  trust  to  secure  and  indemnify  certain  endorsers 
upon  negotiable  notes  due  by  said  N.  And  if  the  said  notes 
were  not  paid  on  demand,  C,  upon  the  written  request  of  either 
of  the  parties  secured,  should  sell  the  said  property  according 
to  law ;  but  C.  was  not  to  be  responsible  for  any  of  said  pro- 
perty until  he  was  ordered  to  sell  the  same  as  aforesaid.  N. 
continued  in  possession  and  carried  on  his  store  for  two  years, 
and  until  all  the  goods  in  the  store  at  the  time  of  the  deed  were 
sold,  and  other  goods  were  bought  with  the  proceeds.  In  No- 
vember, 1875,  under  an  execution  of  P.  against  N.,  the  goods 
then  in  store  were  levied  on.  Held  :  The  deed  is  fraudulet  per 
se,  and  P.  is  entitled  to  the  proceeds  of  the  sale  of  said  goods 
under  his  execution. 

In  the  case  of  McCormick  {Trustee)  vs.  Atkinson  {Trustee)^  78 

IVa.,  8,  decided  November  15,  1883,  it  was  held :  It  is  well  settled 
that  a  conveyance  professedly  to  indemnify  creditors,  but  ex- 
ipressly  or  impliedly  reserving  to  the  grantor  powers  inconsis- 
tent with  and  adequate  to  defeat  such  purpose,  is  void  as  to 
creditors  and  purchasers.  When  conveyance  is  made  of  stock 
and  fixtures  of  a  store  in  trust  to  secure  debts  payable  in 
futuro,  without  right  to  trustee  to  possess  or  control  the  pro- 
I 


260  Citations  tq  the  Code  of  Virginia. 

perty  except  in  event  of  default  of  payment,  then,  on  request  of 
C,  G.,  and  trustee  to  sell  the  same,  such  conveyance  impliedly 
reserves  to  grantor  the  power  to  possess  and  sell  the  property ; 
and  if  he  sells,  then,  as  to  the  purchaser  and  creditors  of  that 
purchaser,  that  conveyance  is  void,  although  it  may  have  been 
recorded,  its  recordation  being  only  notice  of  a  void  thing. 

As  between  an  unrecorded  deed  of  trust  and  a  subsequent  but 
recorded  conveyance  of  the  equity  of  redemption,  without  notice 
of  the  former  deed,  the  latter  hath  priority. 

In  the  case  of  Wray  vs.  DavenporU  79  Va.,  19,  decided  April 
3,  1884,  it  was  held :  It  is  well  settled  that  conveyances,  pro- 
fessedly to  indemnify  creditors,  but  expressly  or  impliedly  re- 
serving to  grantors  powers  inconsistent  and  adequate  to  defeat 
such  purpose,  is  void  to  creditors  and  purchasers. 

It  is  too  late  for  a  grantor  in  a  fraudulent  deed  to  urge  in  the 
appellate  court  that  a  judgment  is  excessive  in  a  suit  to  annul 
that  deed,  and  subject  the  property  to  that  judgment. 

In  the  case  of  Peay  vs.  Morrison's  Executors,  10  Grat.,  149^ 
decided  July,  1853,  it  was  held  :  A  creditor  at  large  may  main- 
tain a  suit  in  equity  to  set  aside  as  fraudulent  a  deed  conveying 
real  estate  made  by  his  debtor,  both  the  debtor  and  his  grantee 
living  and  being  out  of  the  Commonwealth. 

In  the  case  of  William  and  Mary  College  vs.  Powell  et  als., 
12  Grat.,  372,  decided  April,  1855,  it  was  held  :  A  post-nuptial 
settlement  is  made  by  a  husband  upon  his  wife.  The  wife 
afterwards  dies,  and  then  a  bill  is  filed  by  a  creditor  of  the  hus- 
band against  the  children  to  set  aside  the  deed  as  fraudulent  as 
to  the  creditor.  The  husband  is  not  a  competent  witness  to 
prove  the  consideration  upon  which  the  settlement  was  made. 

In  the  case  of  Pe7in  et  als.  vs.  Whitehead,  17  Grat.,  503,  de- 
cided June  26,  1867,  it  was  held,  pages  527-530 :  A  married 
woman  may  engage  in  trade  on  her  separate  account,  and  enter 
into  partnership  for  that  purpose,  by  the  consent  of  her  hus- 
band, and  she  will  be  entitled  to  the  profits  of  the  trade  against 
her  husband,  even  though  his  agreement  be  merely  voluntary  ; 
and  against  his  creditors,  at  least  to  some  extent,  if  the  agree- 
ment be  founded  on  valuable  consideration  paid  by  or  for  the 
wife. 

A  married  woman,  having  a  separate  estate,  may  engage  in 
trade,  with  the  consent  of  her  husband,  and  may,  to  the  extent 
of  her  power  over  it,  subject  her  estate  to  the  payment  of  the 
debts,  and  she  will  be  entitled  to  the  profits  of  the  trade  as 
aga,inst  her  husband  and  his  creditors,  to  the  extent,  at  least,  to 
which  such  profits  may  not  be  due  to  the  labor,  skill,  capital  or 
credit  furnished  by  her  husband. 

Where  the  husband  furnishes  all,  or  a  portion  of  the  labor 
and  skill,  or  a  portion  of  the  capital  and  credit  used  in  carrying 


Citations  to  the  Code  of  Virginia.  261 

on  tlie  business,  the  wife  will  be  entitled,  even  as  against  his 
creditors,  to  such  portion  of  the  profits  as  will  compensate  her 
for  what  she  has  contributed  to  the  business,  either  in  the  shape 
of  capital  or  credit.  To  the  extent  to  which  a  just  apportion- 
ment can,  it  will,  be  made. 

If  the  power  to  dispose  of  or  charge  the  wife's  separate  estate 
is  not  denied,  either  expressly  or  by  implication,  she  has  the 
power  as  incident  to  the  separate  estate. 

Property  is  convej'ed  to  a  trustee,  on  a  consideration  flowing 
from  the  wife,  for  her  separate  use  for  life,  to  remain  in  her  pos- 
session for  the  support  of  herself  and  her  issue  and  family,  and 
for  no  other  purpose,  and  with  power  to  dispose  of  it  by  will 
among  her  family.  She  has  the  power  to  charge  her  life  estate 
with  payment  of  the  debts  of  the  business  in  which  she  was 
engaged.  In  such  a  case  the  wife  is  entitled  to  have  the  debts 
of  the  business  paid  out  of  the  assets,  in  exoneration  of  her 
separate  life  estate. 

A  wife,  being  mthout  any  adequate  means  of  support  for  her- 
self and  family,  and  her  husband  being  insolvent,  she,  with  his 
consent,  and  for  the  purpose  of  obtaining  a  support,  engaged  in 
a  mercantile  business  for  her  separate  use,  by  the  aid  of  her 
friends  in  loaning  her  money  or  selling  her  goods  on  the  credit 
of  the  business.  Her  stock  in  trade  will  be  liable  for  the  debts 
thus  contracted,  and  so  liable,  preferably,  to  the  proper  debts  of 
her  husband,  even  though  the  necessary  labor  and  skill  em- 
ployed in  conducting  the  business  was  furnished  by  him  and  his 
minor  sons.  In  such  a  case  any  claim  which  the  husband  may 
have  for  the  services  of  himself  and  hia  minor  sons  will  be  subor- 
dinate to  the  claims  of  the  creditors  of  the  concern  to  priority  of 
payment  out  of  the  assets. 

An  infant  may  be  a  partner,  and  his  father,  though  indebted 
and  insolvent,  may  release  to  his  son  all  claim  to  his  services; 
and  the  consent  of  the  father  to  the  son's  becoming  a  partner  is 
a  release  of  his  services. 

A  business  in  which  the  wife  is  engaged,  with  the  consent  of 
the  husband,  is  carried  on  by  the  labor  and  skill  of  her  husband 
and  his  minor  sons,  and  he  is  indebted  and  insolvent.  The 
profits  of  the  business,  after  paying  off  its  debts  and  expenses, 
are  liable  to  the  creditors  of  the  husband.  The  expenses  of  the 
support  of  the  husband  and  his  wife  and  family  are  a  part  of  the 
necessary  expenses  of  the  business,  without  which  there  could 
^be  no  profits. 

In  the  case  of  Burton  vs.  Mill  et  als.,  78  Ya.,  468,  decided 
[March  13,  1884.  This  statute  protects  against  fraudulent 
[transfer  all  claims,  debts,  and  demands,  including  claims  to 
damages  for  breach  of  contract  to  marry,  for  which  judgment 
[may,  after  the  execution  of  the  conveyance,  be  obtained. 


262  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Saunders  {Trustee)  vs.  Waggoner,  82  Va.,  316, 
decided  July  15, 1886,  it  was  held  :  It  is  well  settled  that  convey- 
ances, professedly  to  indemnify  creditors,  but  expressly  or  impli- 
edly reserving  to  grantors  powers  inconsistent  with  and  adequate 
to  defeat  such  purpose,  are  void  as  to  creditors  and  purchasers. 

In  the  case  of  Ilickriians  Executor  et  als.  vs.  Trout  et  als.,  83 
Va.,  478,  decided  June,  1887,  it  was  held:  Fraud  must  be 
clearly  proved.  The  burden  of  proof  rests  on  the  alleger.  It 
may  be  proved  by  circumstances.  When  the  evidence  shows  a 
prima  facie  fraud,  the  burden  shifts  to  the  upholder  of  the 
transaction  to  establish  its  fairness.  The  grantee  must  be 
proved  to  have  had  notice  of  grantor's  fraudulent  intent.  The 
usual  badges  of  fraud  are :  Gross  inadequacy  of  price ;  no  se- 
curity taken  for  the  purchase-money  ;  unusual  length  of  credit ; 
bonds  taken  at  long  periods ;  conveyance  in  payment  of  alleged 
antecedent  indebtedness  of  father  to  son  residing  together; 
threats  and  pendency  of  suits ;  concealment  of  the  transaction  ; 
keeping  the  deed  unacknowledged  and  unrecorded  for  some 
time ;  grantor  remaining  in  possession,  as  before  the  convey- 
ance. Any  of  these  facts  may  make  a  case  of  prima  facie 
fraud,  calling  on  the  parties  for  explanation.  Where  to  these 
indicia  are  added  the  absence  of  itemized  accounts,  vouchers, 
etc. ;  contradictions  in  the  testimony  of  grantor  and  grantee ; 
the  want  of  means  in  grantee  to  create  the  alleged  indebtedness 
of  grantor  to  grantee,  and  the  failure  to  examine  as  witnesses 
persons  having  opportunities  to  know  the  facts — these  things 
combine  to  estabHsh  the  fraudulency  of  the  conveyance  as  to 
both  grantor  and  grantee. 

In  the  case  of  Backer's  Administrators  vs.  Moss  et  als.,  84 
Va.,  634,  decided  March  15,  1888.  M.,  for  E.'s  benefit,  put  a 
lien  on  his  real  estate  for  the  amount  of  a  fictitious  note  that 
could  cover  its  value,  and  then  referred  his  creditors  to  E.  as  a 
probable  purchaser  of  their  debts,  and  sold  some  at  fifty  cents 
on  the  dollar,  it  being  agreed  secretly  between  M.  and  K.  that 
the  discounts  should  be  shared  equally  between  them.  Held : 
The  deed  creating  the  lien  was  fraudulent  in  fact  and  void  as  to 
M.'s  creditors. 

In  the  case  of  Hawkins  vs.  Gresham,,  85  Va.,  34,  decided 
May  10,  1888,  it  was  held :  In  suits  to  set  aside  fraudulent  deeds 
and  subject  the  property  therein  to  satisfy  a  debt,  it  is  the 
amount  of  the  debt,  and  not  the  value  of  the  property  which 
determines  the  appellate  jurisdiction. 

In  the  case  of  Paul  vs.  Baugh  et  als.,  85  Va.,  955,  decided 
April  4,  1889,  it  was  held :  Debtor,  in  failing  circumstances, 
may  make  vaUd  assignment  of  all  his  property,  giving  prefer- 
ences as  between  his  creditors,  in  the.  absence  of  fraud,  which 
must  always  be  proved  with  clearness  and  certainty. 


Citations  to  the  Code  of  Virginia.  263 

Section  2459. 

For  the  references  to  17  Grat.,  503,  527,  530  ;  2  Munf., 
363;  29  Grat.,  628,  and  33  Grat.,  651-659,  see  supra,  Sec- 
tion 2458. 

In  the  ease  of  Charnherlayne  et  als.  vs.  Temple,  2  Rand.,  384, 
decided  February,  1824,  it  was  held  :  A  voluntary  conveyance 
of  property  to  children  at  a  time  when  the  donor  is  largely  in- 
debted, is  void  as  against  creditors. 

A  creditor  cannot  subject  the  property  thus  conveyed  by  a 
suit  against  the  donees  until  he  has  established  his.  demand  at 
law  by  obtaining  judgment,  and  in  the  case  of  personal  pro- 
perty, by  suing  out  an  execution  against  the  donor  or  his  repre- 
sentatives, or  by  showing,  by  a  settlement  of  the  administration 
account,  that  there  are  no  assets  in  the  hands  of  the  executor  or 
administrator  to  satisfy  the  debt. 

A  voluntary  conveyance  is  good  between  the  parties,  and  only 
void  as  to  creditors,  who  are  thereby  delayed,  hindered,  or 
defrauded. 

When  a  decree  is  rendered  on  behalf  of  a  creditor  against 
several  voluntary  donees  of  the  debtor,  a  court  of  equity  should 
decree  contribution  among  them,  so  that  each  man  should  pay 
his  just  proportion  of  the  debt.  But  all  the  donees  should  be 
liable  for  the  failure  of  any  one  to  pay  his  proportion  until  the 
debt  is  completely  discharged,  as  far  as  he  has  received  the 
funds  of  the  donor. 

In  the  case  of  Davis  vs.  Payne's  Administrator,  4  Rand.,  332, 
decided  June,  1826,  it  was  held  :  A  voluntary  conveyance  of 
personal  property,  by  a  party  not  indebted  at  the  time,  is  good 
against  creditors,  if  the  deed  be  duly  recorded,  or  the  posses- 
sion remain  solely  and  bona  fide  with  the  donee  ;  otherwise  it  is 
void  by  the  statute  of  frauds. 

In  the  case  of  Jlusto?i's  Adrninistrators  vs.  CantAl,  11  Leigh, 
136,  decided  April,  1840.  A  father,  owing  a  debt  at  the  time, 
makes  a  deed  of  gift  of  personal  chattels  to  his  infant  daughter, 
which  is  duly  recorded.  The  daughter  marries,  and  after  the 
father's  death  the  creditor  files  a  bill  against  the  daughter  and 
her  husband,  impeaching  the  deed  as  fraudulent,  and  seeking  to 
subject  the  property  to  the  payment  of  his  demand.  Held : 
Whatever  might  have  been  the  character  of  the  conveyance  in 

I  its  origin,  it  was  rendered  good  and  available  against  creditors 
upon  the  marriage  of  the  daughter,  who  thereupon  was  to  be 
considered  a  purchaser  by  relation  for  valuable  consideration. 
The  reference  to  1  Rob.,  123,  is  an  error. 
In  the  case  of  The  Bai\k  of  Alexandria  vs.  Patton  et  als.,  1 
Rob.,  499  (2d  edition,  528).  In  March,  1807,  a  voluntary  con- 
veyance was  made,  settling  real  and  personal  estate  for  the  bene- 
fit of  a  wife  and  children.     It  was  attested  by  highly  respectable 


264  Citations  to  the  Code  of  Virginia. 

and  iutelligent  witnesses,  and  immediately  placed  upon  record. 
Eighteen  years  afterwards  a  bill  was  filed  to  impeach  this  con- 
veyance, by  a  creditor  whose  debt  originated  some  years  after 
the  conveyance  was  made,  and  who,  it  appeared,  had  notice  of 
the  conveyance  when  not  more  than  a  fourth  of  the  debt  had 
been  contracted.  The  bill  alleged  that  at  the  time  of  the  con- 
veyance the  grantor  was  very  much  involved,  and  largely  in- 
debted to  many  persons.  But  in  the  opinion  of  the  court  it 
was  proved  that  he  was  then,  and  for  several  years  afterwards, 
able  to  meet  all  his  engagements;  the  owner  of  property  to  a 
considerable  amount;  in  good  credit  and  extensive  business; 
having  the  command  of  large  sums  of  money,  and  not  indebted, 
except  to  a  single  individual,  the  debt  to  whom  was  not  large, 
considering  the  grantor's  estate.  Held  (in  accordance  with  the 
principles  laid  down  by  Baldwin,  J.,  in  Hutchinson  et  als.  vs. 
Kelly,  1  Rob.,  132) :  That  the  bill  of  the  creditor  in  this  case 
cannot  be  sustained. 

In  the  case  of  Hunters  vs.  Waiie,  3  Grat.,  26,  decided  April, 
1846.  The  principles  applicable  to  a  voluntary  conveyance,  in 
a  controversy  between  creditors  of  the  grantors  and  claimants 
under  the  deed,  were  so  thoroughly  discussed  as  to  make  the 
case  rather  a  text  than  a  decision,  and  while  good  authority  is 
to  be  found  therein,  it  is  so  mixed  with  obiter  dictii  as  to  be 
very  uncertain. 

In  the  case  of  Johnston  et  als.  vs.  Gill  et  als.,  27  Grat.,  587, 
it  was  held,  p.  592:  The  stay  law  of  March  3,  1866,  sus- 
pended the  statute  of  limitations  as  to  suits  to  set  aside  fraudu- 
lent conveyances. 

In  the  case  of  Clay  et  als.  vs.  Walter  c&  Co.,  79  Ya.,  92,  de- 
cided May  1,  1884,  it  was  held:  Whatever  the  design  of  the 
grantor,  a  settlement  on  a  woman  in  contemplation  and  in  con- 
sideration of  marriage,  is  valid,  unless  her  knowledge  of  his 
intended  fraud  is  clearly  and  satisfactorily  proved,  service  by 
creditors  of  grantor  of  written  notice  on  the  grantee  before  the 
marriage,  of  his  fraudulent  design  in  making  the  settlement,  can- 
not affect  her  constructively  with  notice  of  such  design,  but  her 
actual  knowledge  of  and  participation  in  that  fraudulent  de- 
sign, must  be  clearly  established  by  proof. 

In  the  case  of  Yowig  vs.  Willis,  82  Va.,  291,  decided  July 
15,  1886.  A  deed  conveys  land  and  horses  and  utensils  on  it 
to  trustee  in  trust  to  secure  bona  fide  creditors,  some  of  whom 
are  preferred,  and  reserving  to  gi-antor  for  three  vears  the  use 
and  profits  by  paying  interest  annuallv  on  certain "^of  the  debts; 
sale  to  be  made  at  the  end  of  that  period  at  the  instance  of  a 
majority  of  the  unpaid  creditors.  Held  :  Such  deed  is  per  se 
fraudulent  on  its  face.  In  suit  to  impeach  such  deed  as  fraudu- 
lent, an  order  made  by  the  court  to  take  the  horses  and  utensils 


Citations  to  the  Code  of  Virginia.  265 

from  the  possession  of  the  grantor  and  sell  them,  held  to  be 
erroneous. 

In  the  case  of  Wiiz,  Biedler  <&  Co.  et  als.  vs.  Osburn  and  Wife, 
83  Va,,  227,  decided  April,  1887,  it  was  held:  In  suit  to  annul 
such  settlements  as  voluntary,  husband  and  wife  are  incompe- 
tent to  testify,  no  matter  by  which  party  introduced. 

Voluntary  deeds  are  void  as  to  existing,  but  not  as  to  subse- 
quent creditors,  unless  actually  fraudulent. 

In  the  case  of  Leiois  vs.  Mason^s  Administrators,  84  Va.,  731, 
decided  Febmary  19,  1885,  it  was  held:  Post-nuptial  settle- 
ments are  presumably  voluntary.  The  burden  of  proving  a 
valuable  consideration  rests  on  those  claiming  under  them. 
Where  the  bill  alleges  them  to  be  voluntary,  the  answer  deny- 
ing the  allegation  does  not  shift  the  burden.  The  defence  must 
be  proved. 

In  the  case  of  Rohhins  vs.  Armstrong,  Cator  (&  Co.,  84  Va., 
810,  decided  April  26,  1888,  it  was  held :  Post-nuptial  settle- 
ments are  presumed  to  be  voluntary.  The  burden  of  repelling 
this  presumption  rests  on  those  claiming  under  them.  If  the 
biU  charges  them  to  be  voluntary,  and  the  answer  denies  the 
charge,  such  denial  is  not  evidence  for  the  respondent,  and  does 
not  shift  the  burden  of  proof,  but  a  valuable  consideration  mov- 
ing from  the  wife  must  be  proved. 

In  the  case  of  Rixey's  Ad7ninistrators  vs.  Deitinck,  85  Va.,  42, 
decided  May  17,  1888.  Personal  property  was  bequeathed  to  a 
married  woman  and  her  children.  The  husband  sold  the  pro- 
perty and  used  the  proceeds.  Afterwards  he  conveyed  his  lands 
in  trust  for  his  wife  and  children.  Held  :  The  property  was  be- 
queathed to  the  wife  and  children  jointly.  He  became  invested 
with  her  interest  jure  tnaritl,  so  that  as  to  her  his  conveyance 
was  voluntary ;  but  as  to  the  children,  the  conveyance  was 
based  on  a  valuable  consideration,  and  must  stand  as  a  security 
to  them. 

It  is  well  settled  that  a  post-nuptial  settlement  is  presumed  to 
be  voluntary  and  void ;  and  to  be  upheld  when  assailed  by 
■creditors,  must  be  supported  by  proof,  independent  of  the 
answers  of  those  claiming  under  the  settlement. 

In  the  case  of  Saunders  vs.  Parrish,  86  Va.,  592,  decided 
January  23,  1890,  it  was  held :  Fraud  must  be  both  charged 
and  proved.  It  may  be  proved  by  circumstantial  evidence,  but 
the  evidence  must  be  such  as  to  satisfy  the  chancellor  that  the 
-conveyance  was  not  made  in  good  faith,  before  he  can  so  declare. 

In  the  case  of  McCue's  Trustees  vs.  Harris  et  als.,  86  Va., 
687,  decided  March  20,  1890,  it  was  held :  A  marriage  settle- 
ment cannot  be  avoided  on  the  ground  that  it  is  voluntary  only 
After  five  years  from  the  date  of  its  admission  to  record,  no  ac- 
tual fraud  being  charged. 


266  Citations  to  the  Code  of  Virginia. 

In  the  case  of  DeFarges  et  als.  vs.  Ryland  <&  Brooks,  87  Va., 
404,  decided  January  29,  1891,  it  was  held  :  Every  voluntary 
post-nuptial  settlement  is  fraudulent  and  void  as  against  cre- 
ditors when  settler  is  indebted ;  and  every  settlement  ^dll  be 
taken  as  voluntary,  unless  those  claiming  under  it  can  show  that 
it  was  made  for  a  valuable  consideration,  which  cannot  be  shown^ 
either  by  the  answer  or  by  the  recitals  in  the  deed,  but  must  be 
estabhshed  by  legal  evidence. 

In  the  case  of  Penn  {Executor)  vs.  Penn,  88  Va.,  361,  decided 
September  17,  1891,  it  was  held :  Though  a  trust  deed  origi- 
nated in  a  fraudulent  intent  on  the  grantor's  part,  yet  if  the 
trustee  and  the  hona  fide  creditors  secured  thereby  had  no  notice 
of  such  intent,  their  claims  so  secured  are  valid  against  all  other 
creditors  of  grantor. 

In  the  case  of  Oberdorfer  vs.  Meyer,  88  Va.,  384,  decided  No- 
vember 5,  1891,  it  was  held:  The  doctrine  is  now  established 
that  though  owner  is  fraudulently  induced  to  sell  his  goods,  yet 
the  sale  passes  the  title,  and  that  vendor,  on  discovering  the 
fraud,  may  disavow  the  sale  and  reclaim  the  goods,  provided 
they  have  not  passed  into  the  hands  of  a  hona  fide  purchaser. 
Where  goods  fraudulently  purchased  are  conveyed  by  vendee  to 
secure  his  creditors,  who,  as  well  as  the  trustee,  are  unaware  of 
the  fraud,  the  trust  deed  will  not  be  annulled  at  the  suit  of  the 
vendors. 

Section  2460. 

In  the  case  of  Wallace's  Administrator  et  als.  vs.  Ireakle  et 
als.,  27  Grat.,  479,  decided  March,  1876,  it  was  held :  Creditors  at 
large  who  file  a  bill  to  set  aside  the  deed  of  their  debtor  con- 
veying land  as  fraudulent,  and  succeed,  have  a  lien  on  the  land 
for  their  debts  from  the  filing  of  their  bill. 

The  deed  of  H.  for  land  is  set  aside  as  fraudulent  at  the  suit 
of  some  of  his  creditors,  and  there  is  a  decree  after  the  death  of 
H.  and  their  priorities.  The  report  shows  that  there  was  one 
judgment  against  H.  before  the  deed  was  made.  Some  of  the 
plaintifis  in  the  bill  were  creditors  by  judgment,  one  a  creditor 
at  large,  a  number  came  in  by  petition  before  the  decree,  and  a. 
number  came  in  before  the  commissioner,  and  by  petition  after 
the  decree.  In  distributing  the  fund,  it  is  to  be  applied  first,  to 
pay  the  j  udgment  recovered  before  the  deed  was  made.  Second, 
to  the  judgments  recovered  before  the  deed  was  made.  Third,. 
to  the  creditors  at  large  who  joined  in  the  bill.  Fourth,  to  the 
creditors  by  petition  before  the  death  of  Henderson,  in  the  order 
in  which  their  petitions  were  filed.  Fifth,  to  all  the  other  cred- 
itors pro  rata. 

Though  in  this  case  there  was  a  decree  for  the  sale  before  an 
account  of  the  debts  was  taken,  the  sale  of  the  land  will  not  be 
set  aside  upon  objection  of  some  of  the  creditors  who  came  in 


Citations  to  the  Code  of  Vieginia.  267 

after  the  decree  made  years  after  the  sale,  when  it  is  obvious 
that  the  laud  would  not  sell  for  as  much  as  it  had  sold  for  be- 
fore, and  which  was  more  than  some  of  these  creditors  had  ex- 
pressed their  willingness  to  take  for  it. 

Section  2461. 

In  the  case  of  Beasley  vs.  Owen,  3  H.  &  M.,  449,  decided 
April  17,  1809,  it  was  held :  If  the  clerk  of  the  court  of  appeals 
be  directed  by  the  court  to  set  aside  a  judgment,  and  by  mis- 
apprehension, the  entry  of  the  order  be  omitted,  it  may  be  done 
at  a  subsequent  term,  and  the  cause  re-docketed. 

Construction  of  the  Statute  of  Frauds  and  Perjuries,  as  to 
Loans  of  Slaves. — W.  H.,  by  his  will,  dated  in  1789,  gave  a 
slave,  then  in  possession  of  his  son-in-law,  W.  B.,  to  his  two 
grandsons,  F.  B.  and  E.  B.,  sons  of  the  said  W.  B.,  and  at  that 
time  infants,  as  soon  as  they  should  come  of  lawful  age;  in 
1792  he  verbally  lent  the  slave  to  his  son-in-law,  "for  the  pur- 
pose of  assisting  in  the  maintenance  of  his  children,"  reserving 
the  right  to  take  him  back  whenever  he  should  think  proper ; 
and  in  1796,  four  years  afterwards,  died;  in  the  same  year  his 
will  was  admitted  to  record,  the  surviving  grandchild  being  still 
under  age ;  in  1801,  when  the  grandchild  attained  his  full  age, 
the  slave  was  taken  in  execution,  and  publicly  sold  as  the  pro- 
perty of  W.  B.  It  was  held  that  the  recording  of  the  will,  in 
1796,  was  a  sufficient  declaration,  within  the  meaning  of  the 
statute  of  frauds,  to  protect  the  right  of  the  grandchild,  in 
opposition  to  the  claims  of  the  creditors  of  the  father. 

In  the  case  of  Lacy  et  als.  vs.  Wilson^  4  Munf.,  313,  decided 
March  29,  1814,  it  was  held  :  A  deed  declaring  a  loan  of  a  slave 
from  a  father  to  his  daughter  during  her  life,  and  a  gift  to  her 
children  after  her  death  (being  admitted  to  record  on  proof  by 
one  witness  only),  is  not  good  against  her  husband's  creditors 
or  purchasers  from  him,  without  notice  of  such  deed,  possession 
of  such  slave  having  remained  with  the  husband  for  five  years 
without  interruption. 

A  purshaser  with  notice,  who  bought  of  a  purchaser  without 
notice,  will  not  be  affected  by  the  deed.  Qucere:  Whether  a 
purchaser  from  the  husband,  with  notice  of  the  deed,  would  not 
have  been  protected  by  the  five  years'  possession  in  this  case  ? 

In  the  case  of  GartJCs  Exemtor  vs.  Barksdale,  5  Munf.,  101, 
decided  March  7,  1816,  it  was  held :  Five  years'  peaceable  and 
uninterrupted  possession  of  slaves  under  a  loan  not  evidenced 
by  deed  duly  recorded,  vests  a  title  in  the  loanee,  which  enures 
in  favor  of  his  creditors,  and  cannot  be  divested  as  to  them  by 
his  returning  the  same  to  the  lender  after  the  said  five  years 
have  expired. 

In  the  case  of  Boyd  dc  Swepson  vs.  Steinhack,  5  Munf.,  305, 


268  Citations  to  the  Code  of  Virginia. 

decided  Jcanuary  17,  1817,  it  was  held  :  A  loan  of  slaves,  though 
not  declared  by  deed  in  writing,  duly  recorded,  and  therefore 
void  as  to  creditors,  the  loanee  having  continued  in  possession 
five  years  without  such  demand  as  would  bar  their  right,  is 
nevertheless  effectual  between  the  parties  and  their  representa- 
tives. If,  therefore,  the  loanee  die  in  possession  of  such  slaves, 
they  are  not  to  be  considered  assets  belonging  to  his  estate,  nor 
can  they  be  recovered  as  such,  being  liable  to  his  creditors,  so 
far  as  their  claims  remain  unsatisfied  by  the  assets  in  the  hands 
of  his  executors  or  administrators,  but  no  farther.  In  such  a 
case,  if  the  assets  be  insufficient,  a  court  of  equity  will  give  the 
creditors  relief  on  a  bill  in  their  behalf  against  the  lender  and 
executor  or  administrator  of  the  loanee,  making  the  assets  liable 
in  the  first  place,  so  far  as  they  extend,  after  which  it  will  allow 
the  lender  a  limited  time  to  make  good  the  deficiency,  and  in 
default  thereof,  direct  a  sale  of  the  slaves. 

In  the  case  of  Pate  vs.  Baker,  etc.,  8  Leigh,  80,  decided  Feb- 
ruary, 1837.  Case  between  the  lender  of  a  slave,  and  the  cre- 
ditors of  the  loanee,  under  the  statute  declaring,  that  where  pos- 
session shall  have  remained  with  the  loanee  or  those  claiming 
under  him  for  five  years,  without  demand  made  and  pursued  by 
due  process  of  law  on  the  part  of  the  lender,  the  loan  shall  be 
taken  to  be  fraudulent  as  to  the  creditors  of  the  loanee,  unless 
it  were  declared  by  wiU  or  deed  in  writing  proved  and  recorded. 

After  a  loan  to  a  person  with  whom,  or  with  those  claiming 
under  him,  possession  has  remained  five  years,  a  deed  is  made 
by  the  lender,  declaring  the  original  loan  and  continuing  it,  but 
this  deed  is  never  admitted  to  record.  Held :  The  deed  cannot 
affect  the  creditor  of  the  person  in  possession,  and  ought  not  to 
be  received  as  evidence  against  such  creditor. 

In  the  case  of  Lightfoot  vs.  Strother,  9  Leigh,  451,  decided 
July,  1838,  it  was  held  :  A  loan  of  goods  and  chattels  made  by 
parol  to  a  person  with  whom,  or  those  claiming  under  him  pos- 
session remains  five  years,  without  demand  made  and  pursued 
by  due  process  of  law  on  the  part  of  the  tender,  is  taken  to  be 
fraudulent  as  to  the  creditors  and  purchasers  of  the  person  so 
remaining  in  possession.  If  the  property  shall  have  been  sold 
before  the  possession  shall  have  remained  five  years  with  the 
loanee,  or  those  claiming  under  him,  the  loan  is  not,  under  the 
statute,  taken  to  be  fraudulent  as  to  the  purchaser ;  when  pos- 
session has  not  at  the  time  of  the  sale  remained  five  years  with 
the  loanee  and  those  claiming  under  him,  the  purchaser  can 
have  no  benefit  of  the  statute  of  frauds  by  reason  of  his  own 
possession  after  the  purchase.  The  circumstance  that  the  pos- 
session by  the  loanee  before  the  sale,  and  the  possession  of  the 
purchaser  after  the  sale,  will  together  make  five  years  cannot 
avail  to  give  a  title  to  the  purchaser. 


Citations  to  the  Code  of  Virginia.  269 

In  the  case  of  Collins  vs.  Lofftus,  10  Leigh,  5  (2d  edition,  6), 
decided  Januarys  1839,  it  was  held  :  The  evidence  to  sustain  an 
illegal  parol  gift  by  a  father  to  his  daughter  on  her  marriage 
should  be  clear  and  cogent. 

According  to  the  settled  construction  of  the  clause  in  the 
statute  of  frauds  concerning  loans,  a  resumption  of  possession 
by  the  lender,  or  recording  a  deed  or  will  granting  away  the  pro- 
perty to  another  within  the  five  years,  avoids  the  operation  of 
the  statute,  and  puts  an  end  to  the  loan. 

In  the  case  of  Roses  Administrator  vs.  Burgess,  10  Leigh, 
186  (2d  edition,  193),  decided  April,  1839.  Certain  persons 
having  become  the  sureties  of  an  executor  in  his  executorial 
bond,  a  deed  is  made  by  him  mortgaging  slaves  to  them,  upon 
condition  that  if  he  shall  faithfully  perform  in  all  things  his 
office  of  executoi^  then  the  deed  shall  be  void;  but  the  deed 
contains  no  clause  providing  that  possession  shall  remain  with 
him  until  default  in  the  performance.  The  mortgagor,  after  the 
date  of  the  mortgage,  is  in  possession  of  the  slaves  for  more 
than  five  years.  Whereupon  a  creditor  of  his  procures  the 
slaves,  to  be  taken  under  execution  and  sold;  and  then,  in 
less  than  five  years  after  they  are  so  taken,  an  action  of  detinue 
is  brought  by  the  mortgagees  against  a  purchaser  at  the  sale 
under  the  execution.  Held :  First,  the  action  is  commenced  in 
due  time;  and  second,  the  fact  of  possession  remaining  with 
the  mortgagor  five  years  without  demand  made  and  pursued  by 
process  of  law  on  the  part  of  the  mortgagees,  does  not  make  a 
case  in  which,  under  the  statute  of  frauds,  the  property  is  taken 
to  be  with  possession,  and  liable  to  the  creditors  of  the  person 
in  possession. 

An  opinion  being  given  by  the  circuit  court  that  the  ac- 
tion is  barred  by  the  act  of  limitation,  the  opinion  is  ex- 
cepted to,  and  the  bill  of  exceptions  setting  forth  the  evidence 
contains,  among  other  things,  a  deed  which,  it  is  alleged  in  the 
court  of  appeals,  shows  the  action  to  have  been  brought  by  im- 
proper parties.  Held:  This  point,  not  having  been  made  in 
the  court  below,  cannot  be  passed  upon  by  the  appellate  court. 

In  the  case  of  London  vs.  Turner,  11  Leigh,  403,  decided  No- 
vember, 184G,  it  was  held ;  Although  when  personal  property  is 
given  to  one  upon  a  trust  by  parol  for  another,  the  declaration 
of  trust  by  parol  may  be  valid  as  between  the  donee  and  the 
cestui  que  trust,  yet  as  between  the  cestui  que  trust  and  the  cred- 
itors of  the  donee  the  case  is  essentially  different. 

When  any  reservation  or  limitation  is  pretended  to  have  been 
made  of  a  use  or  property  by  way  of  condition,  reversion,  re- 
mainder or  otherwise,  in  goods  and  chattels,  the  possession 
whereof  shall  have  remained  with  another  for  five  years,  the 
same  as  to  the  creditors  and  purchasers  of  the  person  so  re- 


270  Citations  to  the  Code  of  Virginia. 

maining  in  possession,  is,  under  the  act  to  prevent  frauds  and 
perjuries,  taken  to  be  fraudulent,  and  the  absolute  property  to 
be  with  the  possession,  unless  such  reservation  or  limitation  were 
declared  by  will  or  by  deed  in  writing,  proved  and  recorded. 

A  father,  upon  the  marriage  of  his  daughter,  makes  her  a  gift 
of  slaves,  and  the  possession  thereof  remains  in  the  daughter's 
husband  five  years.  While  the  husband  is  in  possession,  the 
father  makes  his  will  confirming  the  gift,  and  declaring  that  the 
same  is  "to  her  in  trust  for  the  sale  and  only  purpose  of  her 
immediate  use  and  comfort  in  life,  and  after  her  decease  the 
title  and  fee-simple  interest  to  be  vested  forever  in  the  children 
or  issue  lawfully  begotten  of  her  body,  free  from  the  claim,  con- 
trol or  direction  of  any  other  person  whatsoever."  Although 
this  will  is  made  and  recorded  within  five  years  from  the  time 
of  the  gift,  yet  held :  That  the  slaves  are  liable  to  be  taken  in 
execution  by  the  creditors  of  the  husband. 

In  the  case  of  Dickinson  vs.  Dickinson  s  Administrator  et  als., 
2  Grat.,  493,  decided  January,  1846,  it  was  held :  A  father  sends 
a  slave  to  a  son  upon  a  loan ;  but  the  agent  who  takes  the  slave 
to  the  son  neglects  to  inform  him  that  the  slave  is  a  loan.  The 
neglect  of  the  agent  does  not  affect  the  right  of  the  father  to 
have  the  slave  considered  as  a  loan.  The  father  having  died 
within  five  years  of  the  time  when  the  slave  so  went  into  the 
possession  of  the  son,  and  having  by  his  will  disposed  of  the 
slave,  of  which  the  administrator  of  the  son  had  notice,  the  slave 
may  be  recovered  for  the  father's  estate  after  five  years  from 
the  loan. 

In  the  case  of  Taylor  vs.  Beale  et  als.,  4  Grat.,  93,  decided 
July,  1847.  T.  makes  a  parol  loan  of  a  slave  to  C,  and  the 
slave  remains  in  the  possession  of  C.  and  of  C.'s  executors  for 
more  than  five  years,  and  then  T.  takes  possession  of  him. 
Held  :  The  slave  may  be  subjected  by  the  creditors  of  C.  to  sat- 
isfy their  claims.  The  executors  of  C.  having  brought  an  action 
of  detinue  for  the  slave  against  T.,  who  dies  pending  the  suit, 
which  is  revived  against  his  executor,  and  a  verdict  and  judg- 
ment having  been  given  in  favor  of  the  defendant,  the  creditors 
of  C,  who  have  recovered  judgment  against  his  executors,  can- 
not levy  their  executions  upon  the  slave. 

In  the  case  of  McKenzie  et  als.  vs.  Macon,  5  Grat.,  379,  de- 
cided January,  1849,  it  was  held  :  Slaves  remaining  in  the  pos- 
session of  one  person  on  hire  for  more  than  five  years,  are  not 
subject  to  be  taken  into  execution  for  his  debts. 

The  act  1  Rev.  Code,  Chapter  101,  Section  2,  page  372,  does 
not  apply  to  the  case  of  property  remaining  in  possession  of  a 
debtor  for  more  than  five  years  on  hire. 

In  the  case  of  Beale  vs.  Diggs  et  als.,  6  Grat.,  582,  decided 
January,  1850,  it  was  held :    A  debtor  remaining  in  possession 


Citations  to  the  Code  of  Virginia.  271 

of  slaves  for  five  years  under  a  parol  loau,  they  are  liable  to  sat- 
isfy his  creditors,  though  the  possession  is  resumed  by  the  lender 
before  executions  are  levied  upon  them. 

In  the  case  of  Scott  {Trustee)  vs.  Jones,  etc.,  76  Va.,  233 — 

1.  Loan  of  Chattels. — If  not  in  writing,  duly  recorded,  loans 
of  chattels,  under  Code  of  1873,  Chapter  114,  Section  3,  void  as 
to  creditors  of  loanee,  but  valid  as  between  the  parties,  however 
long  loanee  may  keep  possession. 

2.  Idem. — The  operation  of  the  statute  will  be  avoided  by  the 
lender's  resuming  possession  or  granting  the  chattels  to  another 
by  writing,  duly  recorded,  within  five  years. 

3.  Idem. — If  no  writing  declaring  such  loan  be  recorded,  or 
no  demand  be  made  by  the  lender  and  pursued  by  course  of  law 
for  more  than  five  years  after  possession  commenced,  the  loan 
is  void  as  to  the  loanee's  creditors,  whose  rights  cannot  be 
affected  by  lender's  subsequent  resumption  of  possession ;  but 
the  creditors  meant  are  those  whose  debts  were  contracted  be- 
fore the  resumption  of  possession  or  the  conveyance  of  the  chat- 
tels by  the  lender,  they  having  given  credit  to  loanee  on  the 
apparent  ownership  of  the  property. 

Section  2462. 
In  the  case  of  McComh  vs.  DonalcCs  Administrators^  82  Va., 
903,  decided  September  23,  1886,  it  was  held :  Where  vendor 
agrees  to  sell  to  vendee  personal  property  for  a  price  agreed  to 
be  paid  at  a  future  time,  and  delivers  possession,  but  expressly 
reserves  the  title  until  payment,  it  is  a  conditional  sale,  and 
though  by  parol,  or  by  an  unrecorded  instrument,  it  is  valid  as 
against  vendee's  creditors  or  subsequent  purchasers  with  or 
without  notice.     Hence  the  statute. 

In  the  case  of  Hash  vs.  Lore^  Devault  &  McKarney,  88  Va., 
716,  decided  January  28,  1892,  it  was  held :  Where  vendor  of 
goods,  by  unrecorded  bill  of  sale,  delivers  possession,  but  re- 
tains the  title  until  price  is  paid,  such  sale  is  void  as  to  cred- 
itors and  purchasers  without  notice  from  such  vendee. 

Where  vendor  of  goods,  by  unrecorded  bill  of  sale,  delivers 
possession,  but  retains  title  to  and  control  over  them,  and  re- 
quires proceeds  of  sales  paid  to  him  daily  on  the  price,  and  fails 
to  keep  up  the  stock  according  to  contract,  whilst  the  vendees 
faithfully  perform  their  part,  and  at  length  he  sues  out  an  at- 
tachment and  seizes  upon  the  goods  for  an  alleged  balance,  he 
has  no  claim  to  priority  over  other  creditors  of  the  vendees,  and 
no  claim  against  them,  as  he  has  violated  and  they  have  kept 

^^  their  contract. 

B  Section  2463. 

^^B     In  the  case  of  Mctlure  vs.  Thistle's  Executors,  2  Grat.,  182, 

^^ftdecided  July,  1845,  it  was  held :  A  deed  executed  before  judg- 


272  Citations  to  the  Code  of  Virginia. 

ments  have  been  obtained  against  the  grantor,  under  which  the 
purchaser  has  been  put  in  possession  and  paid  the  purchase- 
money,  but  which  was  not  recorded  until  after  the  judgments 
were  obtained,  is  void  as  against  such  creditors,  and  the  land 
conveyed  thereby  is  subject  to  satisfy  the  judgments.  The  land 
is  equally  subject  in  such  case  to  satisfy  a  creditor  who  has 
issued  a  ca.  sa.  upon  his  judgment,  upon  the  service  of  which 
the  grantor  in  the  deed  has  been  discharged  as  an  insolvent 
debtor. 

In  the  case  of  Withers  vs.  Carter  et  als.,  4  Grat.,  407,  decided 
January,  1848,  it  was  held :  Although  the  statute  avoids  an  un- 
recorded deed  as  against  creditors  of  the  grantor,  it  does  not 
aflfect  a  pre-existing  equitable  estate  of  the  grantee  acquired  by 
purchase  from  the  grantor. 

In  the  case  of  l^loyd  ( Trustee)  vs.  Harding  et  als.,  28  Grat., 
401,  decided  March,  1877.  In  1856  L.  sells  land  to  T.  by 
parol  contract,  receives  all  the  purchase-money,  and  puts  T. 
into  possession.  In  January,  1867,  L.  executes  a  deed  to  T., 
by  which  he  releases  all  the  land  to  T.,  and  warrants  the  title. 
T.  then  sells  the  land  to  "VV.,  and  W.  conveys  to  F.  In  March, 
1866,  B.  recovers  a  judgment  against  L.,  which  is  docketed 
within  the  year.  In  a  suit  against  F.  to  subject  the  land  to 
satisfy  the  judgment  against  L.,  held:  That  the  registry  acts  do 
not  apply  to  a  parol  contract  for  land,  and  T.,  having  paid  all 
the  purchase-money,  and  having  been  put  into  possession  so 
that  he  had  a  valuable  equitable  title  to  the  land,  it  is  not  sub- 
ject to  the  lien  of  the  judgment  against  L.  The  valid  equitable 
title  of  T.  is  not  so  merged  in  the  legal  title  acquired  by  the 
deed  of  L.  to  him,  as  to  subject  the  land  to  the  lien  of  the  judg- 
ment against  L. 

In  the  case  of  Young  et  als.  vs.  Devries  et  als.,  31  Grat.,  304, 
decided  January,  1879,  it  was  held:  Land  sold  and  purchased 
under  a  written  contract,  which  has  not  been  recorded,  though 
the  purchasers  have  paid  all  the  purchase-money,  and  have 
been  for  years  in  possession  under  their  contract  before  a  judg- 
ment has  been  recorded  against  their  vendor,  is  liable  to  satisfy 
the  judgment. 

Land  sold  and  purchased  under  a  parol  contract,  the  pur- 
chaser having  paid  the  purchase-money,  and  having  been  put 
into  possession,  and  holding  possession  under  the  contract  be- 
fore a  judgment  has  been  recovered  against  their  vendor,  is  not 
liable  to  satisfy  the  judgment. 

In  the  case  of  Powells  et  als.  vs.  BelVs  Administrator  et  als., 
81  Va.,  222,  decided  December  10,  1885.  In  1885  H.  bought 
of  K.  a  lot  of  land  for  $433.33,  and  paid  one-third  cash,  but 
took  neither  deed  nor  other  writing  nor  possession.  Some  time 
prior  to  July  14,  1856,  T.,  as  trustee  of  B.,  verbally  purchased 


I 


Citations  to  the  Code  of  Yieginia.  273 

the  lot  of  H.  for  the  same  price,  and  paid  him  what  he  had  paid, 
and  assumed  the  remaining  two-thirds  due  to  K.,  and  by  writ- 
ing, under  seal  of  that  date,  B.  directed  her  trustee  to  obtain  a 
conveyance  of  said  lot  from  K.,  reserving  vendor's  lien  for  the 
two-thirds  still  due  on  the  purchase-money,  and  to  employ  her 
trust  fund  in  building  a  house  upon  it.  This  T.  did,  after  hav- 
ing first  gotten  a  written  order  from  H.  directing  K.  to  convey 
the  lot  as  aforesaid.  The  deed  is  dated  August  1,  1856,  but  it 
was  not  recorded  until  1859.  Afterwards,  in  May,  1857,  S.  got 
a  judgment  against  H.,  and  sued  to  subject  the  lot  to  the  judg- 
ment.    Held : 

1.  T.'s  purchase  of  the  lot  from  H.  having  been  by  parol, 
came  not  within  the  registry  acts. 

2.  T.  having  paid  H.  for  his  entire  interest  in  the  lot,  and  gotten 
possession  of  it  before  S.'s  judgment  was  obtained,  had  a  valid, 
equitable  title  to  the  lot,  and  the  lot  is  not  subject  to  the  lien  of 
the  judgment  of  S.  and  H. 

3.  The  valid,  equitable  title  of  T.  in  the  lot  was  not  so  merged 
in  the  legal  title  acquired  by  the  subsequent  deed  of  K.  to  him 
as  to  subject  the  lot  to  the  lieu  of  said  judgment. 

4.  H.  had  bought  the  lot  verbally,  and  had  sold  it  verbally, 
and  been  paid  back  his  money,  and  his  vendor  had  acquired 
possession  of  the  lot  before  the  rendition  of  the  judgment 
against  H.,  so  H.  had,  when  the  judgment  was  obtained,  no  in- 
terest in  the  lot  whereof  the  judgment  lien  creditor  could  avail. 

Section  2465. 
In  the  case  of  Edison  vs.  Huff  et  als.,  29  Grat.,  338,  decided 
November,  187 7s  At  the  February  term,  1857,  of  the  court,  a 
judgment  was  recovered  against  S.,  and  H.,  as  his  surety,  on  a 
forthcoming  bond,  and  it  was  docketed  on  the  1st  of  April,  1857. 
An  execution  was  issued  on  this  judgment,  and  it  was  paid  by 
H.  On  the  8th  of  October,  1856,  S.,  by  written  agreement,  un- 
der seal,  sold  to  E.  a  house  and  lot,  and  delivered  possession, 
and  on  the  18th  of  the  same  month  S.  conveyed  the  same  to  E. 
This  deed  was  acknowledged  on  the  same  day,  H.  being  one  of 
the  justices  who  took  the  acknowledgment,  but  it  was  not  pre- 
sented in  the  clerk's  office  for  record  until  March  9,  1857. 
Upon  a  bill  by  H.  against  E.  and  S.  to  be  substituted  to  the  lien 
of  the  judgment  against  S.,  held  :  H.  is  entitled  to  be  substituted 
to  the  lien  of  the  judgment.  The  judgment  having  been  dock- 
eted within  twelve  months  from  the  date  of  its  being  rendered, 
and  the  deed  not  having  been  docketed  within  sixty  days  from 
its  acknowledgment,  the  judgment  is  a  lien  upon  the  house  and 
lot  as  against  the  deed.  The  agreement  not  having  been  dock- 
eted, it  is  void  as  to  the  creditor,  and  as  to  H.,  claiming  under 
him,  though  H.  had  notice  of  the  deed,  and  E.  had  possession 

18 


274  Citations  to  the  Code  op  Virginia. 

of  the  house  and  lot.  Notice  of  a  deed  or  written  agreement 
for  the  sale  of  land  does  not  affect  a  creditor  of  the  grantor. 

In  the  case  of  March,  Price  &  Co.  vs.  Chambers  et  als.,  30 
Grat.,  299,  decided  March,  1878.  In  January,  1866,  C,  by  an 
agreement  in  writing,  sold  to  W.  a  lot  in  Danville,  and  in  the 
same  month  conveyed  it  to  him.  The  agreement  was  never  re- 
corded, and  the  deed  was  not  recorded  until  September  18, 
1873.  W.,  having  paid  all  the  purchase-money  to  C.,  conveyed 
the  lot  to  K.  to  secure  to  him  a  debt  of  four  thousand  dollars. 
This  deed  was  recorded  on  the  24th  of  August,  1866.  In  April, 
1868,  W.  was  declared  a  bankrupt,  giving  in  the  lot  as  a  part  of 
his  estate.  In  May,  1868,  the  register  in  bankruptcy  conveyed 
to  the  assignee  in  bankruptcy,  and  in  September,  1868,  on  the 
joint  application  of  the  assignee  and  E.,  as  a  lien  creditor  of  the 
bankrupt,  the  court  in  bankruptcy  ordered  a  sale  of  the  lot,  and 
the  sale  was  made  to  E.  On  the  18th  of  November  the  sale  was 
confirmed,  and  the  assignee  directed  to  convey  the  lot  to  E., 
which  was  done  on  the  same  day,  and  E.  took  possession.  In 
July,  1872,  M.  recovered  a  judgment  against  C.  in  the  Corpora- 
tion Court  of  Danville,  which  was  docketed  on  the  11th  of 
March,  1873.  Held :  Though  M.  had  notice  of  the  sale  by  C.  to  W., 
the  lot  is  liable  to  satisfy  this  judgment,  notwithstanding  all  the 
subsequent  conveyances  and  proceedings  in  relation  to  said  lot. 

In  the  case  of  Young  et  als.  vs.  Devries  et  als.,  31  Grat.,  304, 
decided  January  23,  1879,  it  was  held :  Land  sold  and  pur- 
chased under  a  written  contract  which  has  not  been  recorded, 
though  the  purchasers  have  paid  all  the  purchase-money,  and 
have  been  for  years  in  possession  under  their  contract  before  a 
judgment  is  rendered  against  their  vendor,  is  not  liable  to  satisfy 
the  judgment. 

Land  sold  and  piu^chased  under  a  parol  contract,  the  pur- 
chasers having  paid  the  purchase-money,  and  having  been  put 
in  possession,  and  holding  the  possession  under  the  contract 
before  a  judgment  has  been  recorded  against  their  vendor,  is 
not  liable  to  satisfy  the  judgment. 

In  the  case  of  Bird  vs.  Wilkinson,  4  Leigh,  266,  decided  Feb- 
ruary, 1833.  L.  executes  a  bill  of  sale  of  a  slave  to  B.,  which 
biU  of  sale,  though  absolute  on  its  face,  was,  in  fact,  intended  as 
a  mortgage;  the  bill  of  sale,  though  intended  as  a  mort- 
gage, was  never  recorded,  and  possession  of  the  slave  was 
never  delivered  to  or  acquired  by  the  vendee,  and  could  not 
be  at  the  time  the  deed  was  executed,  the  slave  being  then 
a  runaway ;  but  the  vendor  afterwards  got  possession  of  him, 
without  the  knowledge  or  consent  of  the  vendee,  and  then  sold 
him  to  C,  a  fair  purchaser,  for  valuable  consideration,  without 
notice  of  the  previous  bill  of  sale  to  B.  Held :  That  the  bill  of 
sale  from  L.  to  B.  must  be  taken  for  what  it  was  intended  to  be, 


Citations  to  the  Code  of  Virginia.  275 

ft 
a  mortgage,  whicli  was  void  as  against  the  subsequent  fair  pur- 
chaser, because  it  was  not  recorded  according  to  the  statute  of 
conveyances. 

In  the  case  of  Lane  vs.  Mason,  5  Leigh,  520,  decided  De- 
cember, 1834.  A  mortgage  of  slaves  is  recorded  in  the  county 
of  A.,  the  slaves  being  at  the  time  of  the  execution  and  record- 
ing of  the  deed  in  the  county  of  B. ;  and  after  the  recording  of 
the  deed  in  A.,  the  slaves  are  removed  to  A.,  but  the  deed  is  not 
recorded  anew  there  after  such  removal ;  and  then  the  mort- 
gagor mortgages  the  same  slaves  to  another  person,  and  this 
mortgage  is  recorded  in  A.,  where  the  slaves  are  at  the  time  of 
the  execution  and  recording  thereof.  Held  :  The  first  mortgage 
was  not  duly  recorded,  and  so  is  void  as  against  the  second 
mortgage. 

In  the  case  of  Clark  vs.  Ward  et  als.,  12  Grat.,  440,  decided 
May  22,  1855,  it  was  held :  A  deed  is  made  conveying  personal 
property  to  trustees  for  the  purpose  of  paying  debts  specified 
therein,  and  the  trustees  take  possession  of  the  property,  and 
proceed  to  sell  it  for  the  purposes  of  the  trust.  Though  the 
deed  was  not  duly  recorded,  yet  the  property  having  been  deliv- 
ered to  the  trustees,  this  was  a  vahd  transfer  thereof,  and  protects 
the  property  against  the  demands  of  creditors  who  had  not  ac- 
quired liens  upon  it  before  said  transfer  was  consummated. 

In  the  case  of  Kirkland,  Chase  c&  Co.  vs.  Brune  et  als.,  31 
Orat.,  126,  decided  November  28, 1878,  it  was  held :  The  words 
"goods  and  chattels"  in  the  registry  acts,  do  not  include  a 
mere  chose  in  action  as  a  debt  or  claim  on  another  for  money 
due ;  and  the  assignment  of  such  debt  or  claim  for  value,  though 
not  recorded,  will  be  good  against  a  subsequent  attachment 
upon  such  debt  or  claim.  The  words  "goods  or  chattels"  refer 
to  and  only  include  personal  property  which  is  visible,  tangible, 
or  movable. 

In  the  case  of  Gregg  vs.  Sloan  et  als.,  76  Va.,  497  and  500: 

Trust  Deeds,  Attachments,  Priorities. — Debtors  in  North  Car- 
olina grant  all  their  property,  including  choses  in  action,  due 
from  their  debtors  in  Virginia,  and  secured  on  land  here.  After 
recordation  of  deed  in  North  Carolina,  but  before  its  recorda- 
tion in  Virginia,  a  creditor  of  grantors  living  in  Virginia  at- 
tached the  choses  and  the  land  securing  them.  In  contest  for 
priority,  held :  The  deed,  though  unrecorded  in  Virginia,  being 
prior  to  the  attachment,  prevails  over  it. 

In  the  case  of  Gordon  {Assignee)  vs.  Rixey  (Assignee)  et  als., 
76  Va.,  694,  decided  October  4, 1882,  it  was  held,  page  703 :  Re- 
serving Uen  for  purchase-money  creates  no  property  in  the  land. 
It  passes  as  personalty.  Assigning  the  debt  carries  the  lien. 
It  binds  the  land  for  the  purchase-money,  excluding  other 
claims. 


276  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Bailey's  Executors -y^.  Warren  et  als.,  80  Va., 
512,  decided  June  11, 1885,  it  was  held :  Assignments  of  choses 
in  action  need  not  in  Virginia  be  recorded.  The  case  here  is 
one  of  competitive  assignments. 

Where  subsequent  assignee  claims  that  he  took  his  assign- 
ment for  value,  without  notice  of  the  previous  assignment,  and 
that  the  previous  assignment  was  fraudulent,  the  burden  is,  of 
course,  on  him  to  prove  the  case. 

In  the  case  of  Cammack  vs.  Soran  et  als.,  30  Grat.,  292,  de- 
cided April  25,  1878,  it  was  held :  The  consideration  for  the  sale 
and  conveyance  of  land  is  a  debt  due  at  the  time  by  the  vendor 
to  the  purchaser.  The  purchaser  is  a  purchaser  for  valuable- 
consideration,  within  the  meaning  of  the  recording  acts.  And 
such  a  purchaser  having  purchased  and  received  a  conveyance 
of  lands,  without  notice  of  an  attachment  which  had  been  pre- 
viously levied  upon  it,  but  which  had  not  been  docketed,  ia 
entitled  to  hold  the  land  free  from  the  lien  of  attachment. 

In  the  case  of  Preston's  Administrators  vs.  JVash,  75  Va., 
949,  decided  1881.  In  April,  1850,  W.  N.  executed  a  deed  of 
trust,  conveying  real  estate  to  secure  a  debt  to  J.  M.  P.,  but  the 
deed  was  not  recorded  until  1858.  In  the  meantime — viz.,  in 
March,  1851 — W.  N.  sold  the  same  property  to  S.  H.  N.,  who  took 
and  held  possession  continuously  and  notoriously  under  his 
contract  from  the  date  of  his  purchase,  and  paid  the  purchase- 
money  in  full  at  the  date  of  his  contract,  but  received  no  con- 
veyance, and  had  no  notice  of  the  existence  of  the  trust  deed 
until  March,  1861,  when  the  property  was  advertised  for  sale 
by  the  trustee.  Held  :  The  claim  of  the  purchaser  was  entitled 
to  priority  over  that  of  the  creditor. 

Under  Chapter  114,  Section  5,  of  the  Code  of  1873,  it  is  not 
necessary  that  a  purchaser  for  value,  claiming  against  an  unre- 
corded deed  of  trust,  should  have  taken  a  conveyance  of  the 
legal  title.  It  is  sufficient  if  he  has  the  best  right  to  call  for  it. 
A  complete  purchaser  is  one  who  has  paid  the  purchase-money, 
and  who,  though  he  has  not  received  a  conveyance  of  the  legal 
title,  is  entitled  to  call  for  it. 

In  the  case  of  Preston's  Administrators  vs.  N'ash,  76  Va.,  1. 
In  April,  1850,  W.  N.  conveyed  real  estate  to  secure  a  debt  to 
P.,  but  the  deed  was  not  recorded  until  1858.  In  March,  1851, 
W.  N.  sold  the  same  estate  to  S.  H.  N.,  who  took  and  held  pos- 
session continuously  and  notoriously  under  his  contract  from 
the  date  of  his  purchase,  and  paid  the  price,  but  received  no 
conveyance,  and  had  no  notice  of  the  trust  deed  until  March, 
1861,  when  the  trustee  advertised  the  sale  thereof.  S.  H.  N. 
enjoined  the  sale.  The  court  below  decreed  that  the  contract 
of  purchase  had  priority  over  the  deed  of  trust,  and  perpetuated 
the  injunction.     On  appeal,  held  (by  the  whole  court) :  The 


I 


Citations  to  the  Code  or  Vieginia.  277 

purchaser  hath  priority  over  the  creditor,  under  the  circum- 
stances of  this  case,  and  the  decree  should  be  affirmed. 

Under  the  Code  of  1873,  Chapter  114,  Section  5,  it  is  not  ne- 
cessary that  a  purchaser  for  value,  claiming  against  an  unre- 
corded deed  of  trust,  should  have  taken  a  conveyance  of  the 
legal  title.  It  is  sufficient  if  he  has  the  best  right  to  call 
for  it.  Doswell  vs.  Buchanan's  Executors,  3  Leigh,  366,  criti- 
cised. 

The  reference  to  75  Ya.,  404,  is  an  error,  as  the  case  is  not  in 
point. 

In  the  case  of  Beverley  vs.  Kllis  &  Allan  et  als.,  1  Hand., 
102,  decided  March,  1822,  it  was  held :  Where  a  deed  is  duly 
proved  or  acknowledged  and  ordered  to  be  recorded,  and  left 
with  the  clerk  for  that  purpose,  it  shall  be  considered  as  re- 
corded from  that  time,  although  it  may  never,  in  fact,  be 
recorded,  but  is  lost  by  the  negligence  of  the  clerk  or  other  ac- 
cident. Therefore  a  deed,  under  such  circumstances,  will  be 
preferred  to  a  subsequent  deed  which  has  been  duly  recorded, 
even  though  the  party  to  such  subsequent  deed  may  not  have 
had  notice  of  the  prior  deed. 

In  the  case  of  McCandlish  vs.  Keen  et  als.,  13  Grat.,  615,  de- 
cided February  3,  1857.  C,  in  1849,*gives  a  deed  of  trust  upon 
land  to  secure  a  bo?ia  fide  debt,  which  is  duly  acknowledged  and 
certified  for  record,  but  it  is  not  recorded  until  after  his  death. 
He  makes  his  wiU  in  December,  1849,  by  which  he  charges  his 
whole  estate  with  the  payment  of  his  debts  ;  and  he  dies  in 
1851,  indebted  more  than  his  whole  estate  will  pay,  but  there 
were  no  judgment-creditors  at  his  death.  Held  :  The  deed  of 
trust,  though  not  recorded,  is  valid  against  the  creditors 
of  C. 

In  the  case  of  Davis  et  als.  vs.  Beazley  et  als.,  75  Va.,  491, 
decided  April  28,  1881,  it  was  held  :  A  trustee  and  the  creditor 
secured  by  a  deed  are  purchasers  for  valuable  consideration 
within  the  meaning  of  the  statute,  and  their  title  is  not  affected 
by  a  prior  deed  of  the  grantor,  unless  they  had  notice  at  the 
date  of  their  purchase ;  and  a  prior  deed  not  legally  admitted 
to  record  cannot  give  them  constructive  notice. 

In  the  case  of  Dohyn's  Administrators  vs.  Waring,  82  Va., 
159,  decided  June  30,  1886,  it  was  held :  Unrecorded  contracts 
for  the  sale  of  real  estate  are  void  as  to  creditors  with  or  with- 
out notice. 

In  the  case  of  Slater  et  als.  vs.  Moore  et  als.,  86  Va.,  26,  de- 
cided April  11,  1889,  it  was  held  :  A  deed  is  void  as  against 
creditors  "  until  and  except  from  the  time  it  is  duly  admitted  to 
record."  And  it  is  only  deeds  recorded  within  sixty  days  from 
their  date  of  acknowledgment  that,  upon  recordation,  relate 
back  and  are  valid  as  of  the  date  of  acknowledgment. 


278  Citations  to  the  Code  of  Virginia. 

Section  2466. 

In  the  case  of  Pollard's  Heirs  vs.  Lively ,  2  Grat.,  216,  de- 
cided July,  1845,  it  was  held :  The  clerk  of  a  county  or  corpo- 
ration court  has  no  authority  to  admit  to  record  a  deed  which 
does  not  convey  land  lying  in  his  county  or  corporation.  And 
a  copy  of  such  a  deed,  authenticated  by  the  clerk,  is  not  com- 
petent evidence  in  place  of  the  original. 

In  the  case  of  Horsley  vs.  Garth  o&  Colquit,  2  Grat.,  471,  de- 
cided January,  1846,  it  was  held :  Where  a  deed  conveys  sev- 
eral tracts  of  land  lying  separately  in  different  counties,  the 
recordation  thereof  in  only  one  of  the  counties  is  not  effectual 
in  regard  to  the  tract  or  tracts  lying  in  the  other  counties,  with- 
in the  true  intent  and  meaning  of  the  statute  regulating  convey- 
ances. 

Where  a  navigable  stream  is  the  dividing  line  between  two 
counties,  and  so  separates  lands  conveyed  by  deed  as  to  throw 
part  thereof  into  the  county  on  one  side  of  said  stream  and  part 
thereof  into  the  county  on  the  opposite  side  of  the  same,  the 
parts  so  separated  must  be  as  distinct  tracts  lying  in  different 
counties,  within  the  true  intent  and  meaning  of  the  statute  of 
conveyances.  • 

A  variance  between  the  date  as  it  appears  in  the  deed  certified 
by  the  justices,  and  in  their  certificate,  does  not  avoid  the  regis- 
try of  the  deed,  if  the  identity  of  the  deed  certified  and  the  deed 
recorded  is  satisfactorily  ascertained  by  other  parts  of  the  cer- 
tificate, and  the  annexation  thereof  to  the  deed. 

The  endorsement  of  the  clerk  on  the  deed  of  the  day  when  it 
was  left  with  him  to  be  recorded,  and  his  return  to  the  court  of 
deeds  left  ^vith  him  to  be  recorded,  is  not  conclusive  as  to  the 
day  when  the  deed  was  so  left;  but  the  true  day  may  be  shown 
by  parol  testimony. 

The  carrying  a  deed  to  the  clerk's  office  to  be  recorded  is  not 
enough  to  make  it  good  as  a  recorded  deed  from  that  day.  It 
must  be  left  with  the  clerk  to  be  recorded. 

Section  2467. 

In  the  case  of  Wayles's  Executors  vs.  Randolph,  2  Call,  125 
(2d  edition,  103),  decided  November  9,  1799,  it  was  held :  A 
deed  re-acknowledged  within  eight  months  from  its  date,  and 
recorded  within  four  months  from  the  re-acknowledgment,  is 
good  from  the  date  of  the  re-acknowledgment,  although  there 
are  more  than  eight  months  between  the  time  when  the  deed 
was  first  executed  and  the  day  of  recording  it. 

Although  the  deed  does  not  mention  that  it  was  made  in 
consideration  of  a  marriage  contract,  the  party  may  aver  and 
prove  it. 

In  the  case  of  Colquhoun  vs.  Atkinson,  6  Munf.,  550,  decided 


Citations  to  the  Code  of  Virginia.  279 

March  23,  1820,  it  was  held :  In  general,  a  deed  is  to  be  taken 
as  having  been  executed  on  the  day  of  its  date,  unless  it  appears 
to  have  been  on  some  other  day.  The  testimony  of  the  person 
who  executed  the  deed  was  received  as  fixing  the  time  when  it 
was  executed,  notwithstanding  the  testimony  of  two  witnesses 
to  his  acknowledgment  to  the  contrary  when  not  on  oath,  he 
being  entirely  disinterested  between  the  parties,  and  the  false- 
hood of  his  evidence  being  not  probable  under  the  circumstances 
of  the  case. 

In  the  case  of  Harvey  {Surviving!  Partner,  etc.),  vs.  'Alexander, 
etc.,  1  Rand.,  219,  decided  December,  1822,  it  was  held,  p.  241 : 
A  wife  parting  with  her  dower  right  in  real  property  forms  a 
sufficient  consideration  for  a  subsequent  deed  conveying  other 
property  for  her  benefit.  Although  personal  property  acquired 
by  marriage  cannot  be  considered  a  valuable  consideration  to 
support  a  subsequent  deed  for  the  benefit  of  the  wife,  yet  it  is  a 
meritorious  consideration,  and  the  deed  will  be  supported  or  set 
aside,  according  to  circumstances. 

A  deed  not  lodged  to  be  recorded  until  eight  months  after  its 
date,  and  not  proved  by  the  witnesses  on  whose  testimony  it 
was  recorded  to  have  been  sealed  and  delivered  within  eight 
months  before  it  was  recorded,  is  not  good  as  a  recorded  deed. 

In  the  case  of  lioanes  vs.  Archer,  4  Leigh,  550,  decided  May, 
1833.  A  deed,  dated  in  April,  1804,  and  the  execution  thereof 
attested  by  witnesses,  is  not  recorded  within  eight  months  from 
its  date  ;  but  in  April,  1805,  the  grantor  acknowledges  the  deed 
in  open  court,  and  upon  such  acknowledgment  it  is  ordered  to 
be  recorded.  Held :  Upon  the  construction  of  the  statute  of 
conveyances  of  1792, 1  old  Rev.  Code,  Chapter  90,  Sections  1-4, 
such  acknowledgment  of  the  deed  in  court  is  to  be  taken  as  a 
re-delivery  and  re-execution  of  the  deed,  so  as  to  make  it  a  deed 
as  of  the  date  of  such  acknowledgment,  and  so  the  deed  is  well 
recorded  within  eight  months  from  the  time  of  the  execution, 
and  is  valid  as  against  the  grantor's  creditors. 

In  the  case  of  Ilannan  et  ah.  vs.  Ohendorfer  et  als.,  33  Grat., 
497,  decided  September  23, 1880,  it  was  held,  page  502  :  Affirms 
the  case  of  Harvey  et  als.  vs.  Alexander  et  als.,  1  Rand.,  219, 
cited  sicpra. 

Section  2468. 

In  the  case  of  Hughes  vs.  Pledge  et  als.,  1  Leigh,  443,  decided 
October,  1829,  it  was  held  :  Deed  of  marriage  settlement  of 
slaves  then  in  Hanover,  where  the  deed  was  made  and  duly  re- 
corded ;  husband,  entitled  to  and  holding  possession  under  set- 
tlement, removes  with  the  slaves  to  Richmond,  and  there  mort- 
gages them  for  a  debt  of  his  own,  contrary  to  the  terms  of  the 
settlement,  within  twelve  months  after  his  removal  of  them. 
The  trustees  of  the  subject  under  the  settlement  fails  to  have  it 


280  Citations  to  the  Code  of  Virginia. 

recorded  in  Kichmond  within  twelve  months  after  the  removal 
of  the  slaves,  but  within  the  twelve  months  he  files  a  bill  in 
chancery  against  the  husband  and  the  mortgagee,  asserting  his 
legal  title  to  the  slaves  and  the  trusts  of  the  settlement.  Held  : 
The  mortgagee  is  a  purchaser,  with  notice  of  settlement  within 
twelve  months  after  the  removal  of  the  slaves  to  Bichmond,  and, 
as  to  him,  the  failure  of  the  trustee  in  the  deed  of  marriage  set- 
tlement to  have  it  recorded  in  Eichmond,  does  not  make  the 
settlement  void. 

See  Lane  vs.  Mason,  5  Leigh,  520,  cited  supra,  Section  2465. 

In  the  case  of  Bryan  vs.  Cole^  etc.,  10  Leigh,  497  (2d  edition, 
619),  decided  November,  1839.  A  deed  of  trust  conveying  per- 
sonal chattels  is  recorded  in  the  court  of  the  county  in  which 
the  property  is  at  the  time  of  making  the  deed.  Afterwards  the 
grantor,  who  has  the  property  in  possession,  is  permitted  to  re- 
move with  the  same  out  of  that  county,  and  there  is  a  failure, 
for  more  than  twelve  months  after  such  removal,  to  cause  the 
deed  to  be  delivered  to  the  clerk  of  the  court  of  the  county  into 
which  the  grantor  has  so  removed,  whereupon  an  action  is 
brought  upon  the  grantor  by  one  of  his  creditors.  The  deed  is 
then  delivered  to  the  clerk  of  the  court  of  the  county  into  which 
the  grantor  has  removed,  and  is  there  recorded  before  an  execu- 
tion against  the  grantor's  chattels  is  delivered  to  the  sheriff,  and, 
indeed,  before  the  grantor's  creditors  obtain  judgment.  Held  : 
The  deed  is  valid  as  against  the  creditor. 

In  the  case  of  Crouch  et  als.  vs.  Dahney,  2  Grat.,  415,  decided 
January,  1846,  it  was  held :  A  deed  of  trust  conveying  slaves  is 
duly  recorded  in  the  county  in  which  the  slaves  are  at  the  time. 
Afterwards  a  third  person  takes  one  of  the  slaves  to  another 
county  and  sells  him,  and  he  remains  with  the  purchaser  for 
more  than  twelve  months  without  the  deed  being  recorded  in 
the  county  where  he  is.  In  an  action  by  the  trustee  in  the  deed 
against  the  purchaser  to  recover  the  slave,  it  is  not  to  be  pre- 
sumed that  the  slave  was  removed  with  the  assent  of  the  trustee, 
but  that  fact  must  be  proved  by  the  purchaser.  In  such  a  case, 
the  slave  being  removed  without  the  assent  of  the  trustee,  the 
deed  is  not  void  as  to  purchasers,  though  not  recorded  within 
twelve  months  in  the  county  to  which  the  slave  is  removed. 

In  the  case  of  Lucado  et  als.  vs.  Tutwiler's  Administratrix  et 
als.,  28  Grat.,  39,  decided  January,  1877.  A  canal  boat,  which 
plied  between  Richmond  and  a  point  in  Fluvanna  county,  was 
owned  by  one  Tutwiler,  who  resided  in  said  county.  He  sold 
the  boat  to  Cox,  who  lived  in  Richmond,  and  took  a  mortgage 
thereon  to  secure  the  purchase-money,  which  mortgage  he  forth- 
with recorded  in  Fluvanna  county,  and  within  twelve  months 
thereafter  m  the  city  of  Richmond.  Between  the  dates  of  the 
recordation   of  the  mortgage  in  the  two  places,  judgment-cre- 


Citations  to  the  Code  of  Virginia.  281 

ditors  of  Cox  issued  fieri  facias,  under  which  the  boat  was 
seized  at  Eichmond.  Upon  a  bill  filed  by  Tutwiler's  adminis- 
tratrix to  assert  (alleged)  prior  lien,  held  :  That  the  mortgage  in 
favor  of  her  intestate  was  properly  recorded,  and  she  therefore 
had  priority. 

In  the  case  of  Kirkland,  Chase  &  Co.  vs.  Bmine  et  als.,  31 
Grat.,  126,  decided  November  28,  1878,  it  was  held  :  The  words 
"  goods  and  chattels  "  in  the  registry  acts,  do  not  include  a  mere 
chose  in  action  as  a  debt  or  claim  on  another  for  money  due, 
and  the  assignment  of  such  debt  or  claim  for  value,  though  not 
recorded,  will  be  good  against  a  subsequent  attachment  upon 
such  debt  or  claim.  The  words  "goods  or  chattels"  refer  to 
and  include  only  personal  property  which  is  visible,  tangible  or 
movable. 

Section  2469. 

In  the  case  of  Naylor  vs.  Throckmorton  et  als.,  7  Leigh,  98, 
decided  January,  1836.  Three  several  mortgages  of  the  same 
subject,  to  secure  several  debts  due  to  the  several  mortgagees, 
are  executed  on  the  same  day,  one  after  the  other  in  quick  suc- 
cession ;  they  are  all  proved  and  delivered  to  the  clerk  to  be  re- 
corded, also  on  the  same  day,  but  in  the  same  order  in  which 
they  were  executed;  there  being  no  design,  and  no  express 
agreement  either  that  any  one  of  the  mortgagees  should  have 
priority  over  the  others,  or  that  they  should  all  stand  on  equal 
footing.  Held:  Upon  the  construction  of  the  statute,  1  Rev. 
Code,  Chapter  99,  Section  12,  that  the  mortgagee,  whose  mort- 
gage was  first  executed,  is  entitled  to  priority  of  satisfaction  over 
the  other  mortgagees. 

Section  2470. 

In  the  case  of  Blackford  vs.  Hurst,  26  Grat.,  203,  decided 
April  22,  1875,  it  was  held :  By  the  statute,  deeds  of  trust,  etc., 
are  to  be  recorded  in  the  clerk's  office  of  the  county  or  corpora- 
tion court  within  the  jurisdiction  of  which  the  real  estate  con- 
veyed is  situated. 

(By  the  charter  of  the  city  of  Lynchburg,  jurisdiction  is  given 
to  the  Court  of  Hustings  for  said  city,  not  only  within  the  limits 
of  the  corporation,  but  also  for  the  space  of  one  mile  without 
and  around  said  city.  A  deed  of  trust  conveying  real  estate 
lying  outside  the  corporation  limits,  but  within  one  mile  with- 
out and  around  said  city,  is  to  be  recorded  in  the  clerk's  office 
of  the  corporation  court  of  the  city ;  and  being  so  recorded,  it 
is  valid,  and  has  priority  over  subsequent  judgments  against  the 
grantor,  in  the  deed  docketed  in  the  clerk's  office  of  the  county 
court.) 

In  the  case  of  Burgess  vs.  Belvin,  32  Grat.,  633,  decided  Jan- 
uary 15,  1880,  it  was  held :  The  clerk's  office  of  the  Chancery 


282  Citations  to  the  Code  of  Virginia. 

Court  of  the  city  of  Kichmond  is  the  proper  place  for  the  re- 
cordation of  deeds  conveying  land  lying  within  one  mile  of  the 
city  of  Kichmond  on  the  north  side  of  James  River,  though  out- 
side the  city  limits. 

In  the  case  of  Campbell  &  Co.  vs.  Nonpareil  F.,  B.  &  K.  Co. 
et  ah.,  75  Va.,  291,  decided  February  7,  1881.  On  the  29th 
of  July,  1869,  the  Nonpareil  F.,  B.  &  K.  Company  executed 
a  deed  of  trust  for  the  benefit  of  its  creditors,  conveying  real 
estate  located  in  Henrico  county,  within  a  mile  of  the  corporate 
limits  of  the  city  of  Richmond,  The  deed  was  admitted  to  re- 
cord in  the  clerk's  office  of  the  county  of  Henrico  on  the  7th  of 
August,  1869,  and  in  the  clerk's  office  of  the  Chancery  Court  of 
Richmond  on  the  30th  of  November,  1876.  On  the  3d  of  April,. 
1876,  C.  &  O.  recovered  judgment  against  the  grantor,  which 
was  duly  docketed.  On  the  30th  of  June,  1875,  the  trustee  sold 
and  conveyed  a  portion  of  the  trust  property  to  a  purchaser,^ 
whose  deed  was  recorded  in  Henrico  county  on  the  6th  of  No- 
vember, 1875,  and  in  the  Chancery  Court  of  Richmond  on  the 
30th  November,  1876.  In  a  suit  brought  to  enforce  the  judg- 
ment lien,  held:  1.  The  deed  of  trust  not  having  been  legally 
recorded  prior  to  the  rendition  of  the  judgment,  is  absolutely 
void  as  to  the  judgment  creditors,  notwithstanding  the  trust  had 
been  executed  by  a  sale  and  conveyance  of  the  property ;  for  in 
this  respect  the  statutes  of  registration  make  no  distinction  be- 
tween executed  and  unexecuted  trusts,  but  are  designed  to  give 
notice  of  the  state  of  the  title  as  affected  by  successive  aliena- 
tions, as  well  as  by  encumbrances. 

The  act  of  January  26,  1877,  is  wholly  prospective  in  its 
operation,  and  does  not  validate  a  recordation  invalid  under 
previous  laws,  where  rights  have  accrued  under  those  laws; 
although  the  words  of  a  statute  are  broad  enough  in  their  literal 
intent  to  comprehend  existing  cases  that  may  thereafter  arise, 
unless  a  contrary  intention  is  unequivocally  expressed  therein. 

Section  2472. 

In  the  case  of  Anderson  vs.  Anderson,  2  Call,  198  (2d  edition,. 
163),  decided  November  11,  1799,  it  was  held:  Marriage  set- 
tlement must  be  recorded  within  eight  months,  or  it  will  be  void 
against  prior  creditors. 

In  the  case  of  Land,  etc.,  vs.  Jeffries,  etc.,  5  Rand.,  211,  de- 
cided June,  1827,  it  was  held :  Where  the  grantor  of  personal 
property  remains  in  possession  after  an  absolute  conveyance, 
such  conveyance  will  be  deemed  prima  facie  fraudulent.  But 
such  possession  is  not  conclusive  evidence  of  fraud,  but  open  to 
explanation.  Therefore,  where  a  woman  about  to  be  married 
makes  a  conveyance  of  her  personal  property  to  a  third  person, 
with  the  privity  and  approbation  of  her  intended  husband,  the 


Citations  to  the  Code  of  Virginia.  283 

marriage  takes  place  a  few  minutes  after  the  conveyance,  and 
the  husband  takes  possession  of  the  property  after  the  marriage, 
the  property  thus  conveyed  will  not  be  subject  to  the  husband's 
creditors,  as  his  possession  after  the  marriage  was  not  that  of 
the  Avife  (she  not  being  sui  juris),  and  her  short  possession  be- 
tween the  time  of  conveyance  and  that  of  the  marriage  not 
being  sufficient,  or  of  a  nature  to  render  the  deed  fraudulent. 
Such  a  conveyance,  although  not  recorded,  is  not  void  under 
the  statute  of  frauds  (even  supposing  it  to  be  a  deed  of  trust) 
against  the  creditors  of  the  husband  as  the  statute  applies  to 
the  creditors  of  the  grantor. 

In  the  case  of  Thomas  vs.  Gaines,  1  Grat.,  347,  decided  Feb- 
ruary, 1845,  it  was  held :  A  deed  of  marriage  settlement  made 
before  tlie  marriage,  conveying  the  property  of  the  wife,  and  in 
which  the  intended  husband  joined,  is  fraudulent  and  void  as  to 
subsequent  purchasers  from  the  husband,  without  notice,  un- 
less duly  recorded. 

In  the  case  of  McCandlish  vs.  Keen,  13  Grat.,  615,  decided 
February  3,  1857,  it  was  held :  The  act  in  relation  to  the  cred- 
itors and  purchasers  who  shall  be  protected  against  unrecorded 
deeds,  does  not  include  creditors  claiming  under  a  devise  for  the 
payment  of  debt,  or  under  the  statute  subjecting  real  estate  to 
their  payment.  But  the  creditor  who  may  avoid  such  a  deed 
must  have  some  lien,  by  judgment  or  otherwise,  which  entitles 
him  to  charge  the  subject  conveyed  specifically. 

The  reference  to  report  of  the  revisors  of  the  Code  of  1849 
throws  no  light  on  this  section,  as  all  the  cases  there  cited  are 
given  here,  and  only  serve  to  show  the  prevailing  confusion 
which  made  this  legislative  enactment  necessary. 

In  the  case  of  Doswell  vs.  Buchanans  Executors,  3  Leigh,  365, 
decided  December,  1831.  H.  having  only  an  equitable  sale  in 
land,  conveys  the  land  by  deed  of  bargain  and  sale,  without  any 
warranty,  to  M.  &  F.,  in  trust  to  secure  a  debt  to  B.,  and  this 
deed  of  trust  is  duly  recorded ;  afterwards,  H.  acquires  the  legal 
title,  and  then  he  sells  the  land  to  D.,  and  conveys  it  to  him 
with  warranty.  Held :  That  as  the  deed  of  trust  by  H.  to  M.  k 
F.  to  secure  the  debt  to  B.  was  executed  when  H.  had  not  the 
legal  title,  and  as  that  deed  contained  no  clause  of  warranty,  the 
legal  estate  subsequently  acquired  by  H.  did  not  enure  to  the 
trustees,  M.  <fe  F.,  to  secure  the  debt  to  B.,  so  that  B.  had  only 
a  lien  on  the  equitable  estate.  That  the  recording  of  the  deed, 
mortgaging  H.'s  equitable  estate  to  secure  the  debt  to  B.,  was 
not  constructive  notice  of  that  deed  to  D.,  the  subsequent  pur- 
chaser from  H. ;  for  the  statute  requiring  deeds  to  be  recorded 
makes  them  void  as  to  subsequent  purchasers  without  notice, 
if  not  recorded,  but  gives  them  no  additional  validity  if  re- 
corded. 


284  Citations  to  the  Code  of  Virginl\. 

To  sustain  a  plea  of  purchaser  witliout  notice,  the  party  must 
be  a  complete  purchaser  before  notice ;  that  is,  must  have  ob- 
tained a  conveyance  and  paid  the  whole  purchase-money. 

In  the  case  of  Preston  s  Adininistrator  vs.  JVash,  76  Va.,  1 
(absent,  Moncure,  P.).  A  complete  purchaser  is  one  who  has 
paid  the  purchase-money,  and  who,  though  he  has  not  received 
a  conveyance  of  the  legal  title,  is  entitled  to  call  for  it.  Held 
(by  Staples  and  Burks,  J.'s) :  The  trust  creditor,  P.,  is  equitably 
estopped  by  his  conduct  from  setting  up  the  lien  of  the  trust 
deed  against  S.  H.  N. ;  and  whilst  they  reached  the  same  results 
as  were  reached  by  Christian  and  Anderson,  J.'s,  they  did  so  by 
a  different  process  of  reasoning. 

In  the  case  of  Lamar  {Executor^  vs.  Hale  et  als.,  79  Va.,  147, 
decided  July  17,  1884,  it  was  held  :  To  maintain  the  defence  of 
purchasers  without  notice,  alienees  must  aver  and  prove  (1),  that 
they  are  purchasers  for  valuable  consideration ;  (2),  that  the 
consideration  has  been  actually  paid ;  (3),  that  they  have  re- 
ceived, or  are  best  entitled  to  receive,  conveyance  of  the  pro- 
perty ;  and  (4),  that  those  essentials  all  occurred  prior  to  their 
having  notice  of  the  adverse  claim.  The  burden  of  establishing 
the  first  three  essentials  rests  on  the  aUenees,  and  to  affect  them 
with  notice  of  his  adverse  claim  rests  on  claimant. 

Section  2473. 
For  3  Leigh,  365,  see  supra,  Section  2472. 

CHAPTEE   ex. 

Section  2474. 

In  the  case  of  McCandlish  vs.  Keen,  13  Grat.,  615,  decided 
February  3,  1857.  A.  conveys  real  and  personal  property  on  a 
consideration  of  a  sum  of  money  and  of  an  annuity  for  the  life 
of  the  grantor,  if  she  survives  the  grantee,  from  the  death 
of  the  grantee  ;  and  in  the  deed  the  grantee  covenants  that 
his  estate  shall  pay  to  the  grantor,  if  she  survives  him, 
the  annuity.  Held:  This  does  not  create  a  charge  upon  the 
property  conveyed,  so  as  to  entitle  the  grantor  to  subject 
the  same  to  the  payment  of  the  annuity  after  the  death  of 
the  grantee  in  preference  to  the  other  creditors  of  the  grantee. 
The  conveyance  is  in  consideration  of  the  covenant  of  the 
grantee  that  his  estate  shall  pay  the  annuity,  and  the  vendor's 
lien  does  not  attach  upon  the  property. 

In  the  case  of  Patton  vs.  Hoge,  22  Grat.,  443,  decided  July 
15,  1872,  it  was  held  :  W.,  Z.  and  Y.  are  partners  and  joint  ten- 
ants of  real  estate.  W.  and  Z.  sell  their  two-thirds  interest  in 
the  real  estate  to  Y.,  W.  receiving  four  hundred  dollars  in  cash 
for  his  interest,  and  Y.  executing  to  Z.  three  notes,  payable  at 


\ 


Citations  to  the  Code  of  Vikginia.  285 

different  dates,  amounting  to  seven  hundred  dollars,  for  his  in- 
terest. The  deed  from  W.  and  Z.  to  Y.,  which  conveys  the  two 
undivided  thirds  of  the  property,  reserves  a  lien,  'as  follows : 
"  And  the  said  Z.  hereby  retains  a  lien  on  the  property  hereby 
conveyed  as  security  for  the  payment  of  the  above  recited  notes 
received  in  payment  of  his  interest."  The  said  "W.  has  been 
paid  in  full  for  his  interest.  The  lien  is  reserved  on  the  two- 
thirds  of  the  real  estate  conveyed  in  the  deed. 

In  the  case  of  Coles  vs.  Withers,  33  Grat.,  186,  decided  April, 
1880.  In  1852  C  sold  to  M.  a  tract  of  land  for  $3,564,  for 
which  she  took  his  bond,  and  reserved  a  lien  on  the  face  of  the 
deed  given  to  M.,  which  was  duly  recorded.  Between  the  sale, 
in  1852,  and  December,  1855,  there  were  other  transactions  be- 
tween C.  and  M.,  by  which  the  latter  became  indebted  to  the 
former  (inclusive  of  the  purchase-money  for  the  land)  $10,630.50, 
and  for  which  he  executed  his  bond,  with  two  personal  sureties, 
and  the  bond  for  $3,564  was  surrendered.  M.  died  in  1856, 
leaving  his  whole  property  to  his  wife,  L.,  who  was  a  sister  of 
C.  L.,  the  widow,  soon  married  W.,  and  in  1863,  W.  and  his 
wife  conveyed  the  land  purchased  of  C,  with  other  lands,  to  H., 
made  him  a  deed,  and  put  him  into  possession.  On  the  19th  of 
October,  1866,  the  balance  due  on  the  $10,630.50  bond  was 
$4,123,  for  which  W.,  who  was  then  the  representative,  and  had 
married  the  widow  of  M.,  gave  his  bond,  got  possession  of  the 
$10,630.50  bond,  and  confessed  a  judgment  for  the  $4,123  in 
favor  of  C,  which  he,  W.,  alleges  was  in  lieu  of  the  bond  which 
he  got  possession  of.  W.  soon  went  into  bankruptcy,  and  but 
a  small  portion  of  the  judgment  was  paid.  C.  denies  the  state- 
ment of  W.  about  his  possession  of  the  bond,  and  there  is  no- 
thing in  the  record  to  certainly  show  affirmatively  that  she  never 
intended  to  release  the  lien  reserved  in  the  deed  to  M.  H.  de- 
nies all  knowledge  of  the  reserved  lien  at  the  time  of  the  pur- 
chase, and  until  a  long  time  thereafter.  There  was  nothing 
done  by  C.  to  induce  H.  to  believe  that  she  had  waived  her 
lien  or  to  influence  his  conduct  in  any  way.  On  a  bill  filed  by 
C.  against  W.  and  H.  and  wife  in  1871  to  enforce  the  lien  for 
the  purchase-money  then  due  on  the  land  sold  by  C.  to  M.,  and 
afterwards  by  W.  and  wife  to  H.,  held  :  The  question  of  whether 
a  lien  reserved  is  surrendered  is  one  of  intention,  on  the  part 
of  the  vendor,  under  the  circumstances  of  each  case  ;  and  there 
being  nothing  in  this  case  to  show  such  intention,  the  lien  is 
not  surrendered,  and  must  be  recognized  as  still  existing.  The 
lien  was  a  security,  not  for  the  bond,  but  for  the  debt,  and  there- 
fore the  cancellation  or  surrender  of  the  bond  cannot  extinguish 
the  debt  and  the  lien  given  for  its  payment  without  a  manifest 
intention  to  do  so  by  the  vendor,  and  the  burden  is  on  the  pur- 
chaser to  show  such  intention. 


286  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Gordon  (Assignee)  vs.  liixey  (Assignee)  et  als., 

76  Va.,  694 : 

1.  Liens — Judgment- Vendors — Priorities — Case  at  Bar. — In 
1867,  on  the  bond  of  M.  &  B.  to  P.,  assigned  by  P.  to  R.,  the 
latter  obtained  judgment,  which  was  docketed  in  1869.  In  1866 
M.  granted  his  land  to  B.,  reserving  lien  for  purchase-money, 
and  in  1870  assigned  the  purchase-money  bonds  to  G.  for  value 
without  notice  of  the  judgment.  In  a  contest  for  priority  be- 
tween R.,  as  judgment-creditor,  and  G.,  as  assignee  of  the  ven- 
dor's lien  and  of  the  bonds  thereby  secured,  held  :  The  lien  of 
judgment  hath  priority. 

2.  Idem — Vendors. — Reserving  lien  for  purchase-money  cre- 
ates no  property  in  the  land  ;  it  passes  as  personality.  Assign- 
ing the  debt  carries  the  lien.  It  binds  the  land  for  the  pur- 
chase-money, excluding  other  claims. 

3.  Idem — Idem — Assignee  of  purchase-money  bonds,  secured 
by  vendor's  lien,  is  assignee  of  a  chose  in  action  only,  and  not 
such  purchaser  of  the  land  for  value  as  will  be  protected  by 
the  Code  of  1873,  Chapter  182,  Section  8.  He  is  entitled  to  the 
rights  of  his  assignor,  and  to  no  more. 

In  the  case  of  Stoner  et  als.  vs.  Harris  et  als.,  81  Va.,  451,  de- 
cided February  18,  1886,  it  was  held :  Purchaser  or  incum- 
brancer of  mere  equitable  title  must  take  the  place  of  the  per- 
son from  whom  he  purchases,  and  vendor  may  resort  to  the 
estate,  whether  the  purchaser  of  mere  equitable  estate  from  his 
vendee  purchased  with  notice  or  without  notice. 

In  the  case  of  Neff  vs.  Wooding  et  iix.,  83  Va.,  432,  decided 
June  16,  1887,  it  was  held  :  In  a  suit  to  enforce  liens  reserved 
in  favor  of  grantor  in  his  conveyance  of  land,  as  provided  by 
this  section,  the  court  may  decree  a  sale  of  the  land  to  satisfy 
the  lien,  without  any  previous  account  of  rents  and  profits,  the 
provisions  of  Section  3571  applying  only  to  suits  for  the  en- 
forcement of  judgment  liens. 

Section  2475. 

In  the  case  of  Taege,  etc.,  vs.  Bossieux,  15  Grat.,  83,  decided 
January,  1859,  it  was  held :  Under  the  statute,  Code,  Chapter 
119,  Section  2,  page  510,  creating  the  mechanics'  lien  upon  the 
building,  the  suit  may  be  brought  within  six  months  from  the 
time  the  building  is  finished,  to  enforce  the  lien  as  to  the  instal- 
ments of  the  contract  price  due,  and  though  some  of  them  are 
not  dae  and  payable  at  the  time  the  suit  is  commenced,  the 
court  may,  in  its  decree,  provide  for  them.  The  contract  and 
lien  under  the  statute  may  be  assigned,  and  the  assignee  may 
enforce  the  lien  in  the  same  mode  that  the  mechanic  may  do  it. 

By  the  contract  for  building  a  house,  the  builder  is  to  furnish 
the  materials  and  to  build  the  house  in  a  workmanlike  manner. 


Citations  to  the  Code  of  Virginia.  287 

and  the  price  is  to  be  fixed  by  referees  chosen  by  the  parties. 
Soon  after  the  work  is  finished  it  is  valued  and  the  price  fixed, 
but  afterwards  defects  become  apparent  by  the  shrinking  of  the 
timber,  showing  that  the  work  was  executed  in  a  very  defective 
and  unworkmanlike  manner.  The  valuation  does  not  conclude 
the  owner  of  the  house ;  but  he  is  entitled  to  compensation  for 
the  defects;  and  in  a  suit  by  the  assignee  of  the  builder  to 
enforce  the  lien  for  the  price  for  building  the  house,  the  owner 
vnll  only  be  required  to  pay  what  the  building  was  really 
worth. 

A  building  fund  company  agrees  to  advance  to  one  of  its 
members  money  to  build  a  house  on  a  lot  owned  by  him,  and 
advances  a  part  of  the  money  and  takes  a  lien  upon  the  lot  and 
the  buildings  which  may  be  erected  upon  it,  to  secure  advances 
made  and  to  be  made.  The  member  then  makes  a  contract  for 
the  building  of  a  house  on  the  lot,  with  a  mechanic,  who,  to 
raise  money  faster  than  it  can  be  gotten  from  the  company, 
assigns  the  contract  to  a  person  who  undertakes  to  advance  the 
money,  and  the  contract  is  recorded  so  as  to  create  a  mechanics' 
lien.  After  the  contract  is  recorded,  the  company  advances 
money  from  time  to  time  as  it  had  agreed  to  do,  which  is  paid 
to  the  assignee  in  part  satisfaction  of  his  advances  to  the  me- 
chanic, with  a  knowledge  on  his  part  that  it  comes  from  the 
company,  and  that  company  claims  priority  of  lien  upon  the 
property.  The  company  is  entitled  to  priority  over  the  me- 
chanics' lien  for  its  advances  made  after  the  contract  was  re- 
corded, as  well  as  for  its  advances  made  before. 

In  the  case  of  Merchants  and  Mechanics  Savings  Bank  of 
Norfolk  vs.  Dashiell  et  als.,  25  Grat.,  616,  decided  December, 
1874,  it  was  held :  The  term  "  general  contractor,"  as  used  in 
the  act  of  July  11,  1870,  entitled  "an  act  in  relation  to  me- 
chanics' lien,"  includes  all  persons  furnishing  materials  for  or 
doing  work  upon  a  building  under  a  contract  made  by  such 
persons  directly  with  the  owner  of  the  building.  If,  after  con- 
tracts are  made  by  the  owner  with  the  parties  who  are  to  furnish 
materials  for  or  do  the  work  upon  the  building,  and  they  com- 
mence to  perform  their  contract,  the  erection  of  the  building  is 
stopped  by  the  owner,  so  that  it  is  not  completed,  the  Hen  in 
favor  of  the  workman,  and  the  parties  furnishing  the  material 
for  compensation  for  work  done  and  material  furnished,  is  ex- 

kisting  and  valid,  without  their  filing  their  claims  in  the  clerk's 
ofiice  within  thirty  days  from  the  time  the  work  is  stopped,  or 
though  they  do  not  file  them ;  and  these  liens  will  have  priority 
over  any  liens  upon  the  building  created  after  work  was  com- 
menced under  said  contracts.  The  lien  exists  where  work  is 
done  under  a  verbal  contract  with  the  owner. 
In  the  case  of  Pairo  vs.  Bethell  {Assigtiee),  75  Va.,  825,  de- 


288  Citations  to  the  Code  of  Virginia. 

cided  November,  1881.  The  act  of  1870,  in  respect  to  me- 
chanics', liens  is  more  comprehensive  than  the  previous  law, 
which  was  left  as  it  was ;  it  extends  the  lien  to  a  larger  class  of 
persons,  and  prescribes  a  different  mode  of  acquiring  the  lien ; 
it  applies  to  contracts  wiitten  as  well  as  not  written,  and  the 
remedy  by  motion  as  well  as  by  bill  is  provided.  Hence,  if  the 
contract  be  in  writing,  the  lien  may  be  acquired  either  under 
the  previous  statute,  by  the  recordation  of  the  contract  as  there- 
in provided,  in  which  case  the  remedy  would  be  by  bill  in  equity ; 
or  it  may  be  acquired  or  secured  under  the  act  of  1870,  by  filing 
in  the  proper  clerk's  office  and  having  recorded  "  a  true  account 
of  the  work  done  or  materials  furnished,"  etc.,  as  provided  by 
Section  4  of  said  chapter. 

The  proceeding  by  motion  under  this  statute  is  a  summary 
remedy  in  equity,  assimilated  in  some  of  its  features  to  a  pro- 
ceeding at  law ;  the  motion  may  be  heard  without  formal  plead- 
ings; the  testimony  is  given  viva  voce  before  the  court,  and  if 
objections  are  made  to  the  rulings  of  the  court,  they  may,  it 
seems,  be  put  into  the  record  by  bills  of  exceptions.  All  this  is 
anomalous  in  a  court  of  equity,  but  it  results  necessarily  from 
the  proceeding  authorized.  A  party  has  no  absolute  right  to  a 
trial  by  jury  of  an  issue  joined  in  such  a  motion,  it  being  in  the 
nature  of  an  equitable  remedy,  and  the  statute  not  applying  to 
motions  which  partake  of  the  nature  of  an  equitable  proceeding 
to  enforce  a  charge  on  real  estate.  On  such  a  motion  the  court 
might,  perhaps,  in  the  exercise  of  a  sound  discretion,  direct  an 
issue  or  issues  under  circumstances  which  would  warrant  such 
direction  in  a  regular  chancery  suit ;  and  so,  if  the  case  required 
it,  there  seems  to  be  no  good  reason  why  there  might  not  be  a 
reference  to  a  commissioner  to  make  inquiries  and  to  take  and 
state  accounts.  On  such  a  motion  proof  of  the  recordation  of 
the  account  and  statement  under  the  statute  is  proper,  if  such 
evidence  is  offered  not  to  contradict  or  vary  the  written  con- 
tract, but  merely  to  prove  the  signing  of  the  contract  by  the 
parties  and  the  performance  of  it  on  the  part  of  the  builders. 
As  the  statute  requires  all  parties  in  interest  to  be  before  the 
court,  the  assignors  of  the  contract  are  proper,  if  not  necessary, 
parties,  and  may  be  made  such  on  their  motion.  The  statute 
gives  the  lien,  not  only  on  a  building,  but  also  "so  much  land 
therewith  as  shall  be  necessary  for  the  convenient  use  and  enjoy- 
ment of  the  premises."  In  the  absence  of  proof  to  the  contrary, 
a  lot  in  a  town,  such  as  is  described  in  this  case,  is  necessary  to 
the  convenient  and  reasonable  enjoyment  of  the  buildings  put 
upon  it. 

Eeal  property  of  value  should  be  sold  on  a  reasonable  credit, 
unless  under  pecuHar  circumstances,  which  should  appear  by 
the  record.     But  this  rule  has  no  application  to  sales 'under 


Citations  to  the  Code  of  Virginia.  289 

mortgages,  deeds  of  trust  or  other  instruments  of  writing,  in 
which  the  terms  of  sale  are  agreed  upon.  In  such  cases  the 
contract  of  the  parties  governs,  and  the  court  is  left  without 
discretion  as  to  the  terms. 

In  the  case  of  Boston  c&  Co.  vs.  C.  c&  0.  B.  It.  Co.  et  als.,  76 
Va.,  180 : 

1.  Mechanics'  Lien — General  Contractor — Railroad  Com- 
pany.— General  contractors,  in  May,  1874,  filed  a  bill  to  assert 
the  mechanics'  lien  against  the  raih'oad  company,  predicated  on 
notice  of  lien  recorded  in  the  Chancery  Court  of  Richmond  city, 
December  27,  1873,  and  nowhere  else.  The  lien  claimed  was 
for  five  thousand  dollars  worth  of  lumber  furnished  the  railroad 
company  at  different  times  and  places ;  part  for  constructing 
wharves  in  Henrico  county,  within  one  mile  of  the  corporate 
limits  of  said  city ;  another  part  for  constructing  a  tunnel  in 
said  city ;  a  third  part  for  constructing  coal-bins  and  trestles  at 
S.,  in  A.  county,  and  the  residue  for  constructing  a  round-house 
at  H.,  in  West  Virginia.  The  lien  claimed  on  the  whole  pro- 
perty of  the  railroad  company  in  this  State,  and  particularly  on 
the  wharves,  etc.,  and  the  tunnel,  etc.  The  items  extend  from 
July  1  to  December  8,  1873,  but  the  last  lumber  furnished  for 
the  tunnel  was  on  September  8,  1873.     Held  : 

(1.)  They  have  no  statutory  lien  against  the  railroad  com- 
pany. 

(2.)  They  have  no  equitable  right  to  priority  over  the  mort- 
gages on  the  principles  affirmed  in  Williamson's  Administrator 
vs.  li.  li.  Co.,  33  Grat.,  624,  and  Gihert  vs.  R.  R.  Co.,  because 
such  claim  was  asserted  first  here  in  argument,  but  not  in  the 
record,  and  because  the  materials  were  purchased  for  the  con- 
struction, not  for  the  maintenance,  of  the  road. 

(3.)  The  wharves  are  within  the  jurisdiction  of  said  city, 
which  extends  one  mile  beyond  its  corporate  limits ;  but,  in  the 
sense  of  the  statute,  they  are  not  within  the  city. 

(4.)  The  tunnel  is  within  the  city,  but  the  last  item  of  the  ac- 
count for  lumber  furnished  for  the  tunnel  is  dated  September  8, 
1873,  and  the  lien-claim  was  not  filed  within  the  prescribed 
time. 

2.  Idem — Idem. — Furnishing  materials  creates  an  incipient 
lien,  but  to  perfect  it  the  general  contractor  must,  in  conformity 
with  the  Code  of  1873,  Chapter  115,  Sections  3  to  11,  in- 
clusive, within  the  prescribed  time,  file,  in  the  county  or  cor- 
poration court  of  the  county  or  corporation  in  which  is  situated 
the  property  on  which  the  lien  is  sought  to  be  secured,  and  in 
the  clerk's  office  of  the  Chancery  Court  of  Richmond  city,  ^'here 
the  property  is  in  said  cit}',  a  true  account  of  the  work  done  or 
materials  furnished,  sworn  to  by  the  claimant,  or  his  agent,  with 
a  statement  attached,  signifying  his  intention  to  claim  the  benefit 

19 


290  Citations  to  the  Code  of  Virginia. 

of  the  lien,  and  setting  forth  a  description  of  the  property  on 
which  he  claims  a  lien,  which  is  to  be  recorded  by  the  clerk. 

3.  Idem— Idem— Eailroad  Company. — If  such  a  lien  is  given 
on  the  property  of  a  railroad  company  in  its  entirety,  it  can  only 
be  secured  by  filing  the  account  in  the  proper  clerk's  office  of 
every  county  or  corporation  through  which  the  road  passes. 

4.  Qucere :  Are  railroad  companies  embraced  within  the  pro- 
visions of  the  Code  of  1873,  Chapter  115,  Sections  3  to  11,  in- 
clusive ? 

In  the  case  of  SfiacTcleford  vs.  Beck,  80  Va.,  573,  decided  June 
25,  1885,  it  was  held :  The  remedy  by  lien  under  the  Code  of 
1873,  Chapter  115,  Sections  2,  3,  and  4,  is  a  creature  of  statute 
unknown  to  the  common  law ;  and  in  order  to  entitle  a  con- 
tractor to  its  benefits,  he  must  strictly  pursue  the  statute.  The 
statute  requires  that  a  contractor,  seeking  to  secure  the  benefit 
of  its  provisions,  shall  file  in  the  clerk's  office  an  account  (which 
is  an  itemized  or  detailed  statement  of  the  transaction  to  which 
it  relates)  of  work  done  and  materials  furnished,  and  therefore 
a  paper  in  the  following  words,  viz.,  "  To  balance  of  account 
rendered  for  labor  and  work  done  and  material  fui-nished  for 
your  house,"  is  not  sufficient  to  create  the  lien  provided  by  the 
statute.  The  contractor  having  failed  to  secure  a  lien  on  the 
house  by  his  omission  to  fulfil  the  requirements  of  the  statute, 
a  purchaser  of  the  house  from  the  owner  is  not  ajffected  with 
liabihty  for  the  contractor's  claim  by  reason  even  of  actual 
notice  of  the  account  thereof. 

In  the  case  of  the  Roanoke  Land  and  Improvement  Company 
vs.  Karn  &  Hickson  ;  Same  vs.  Snead  (&  Winstoji,  80  Va.,  589, 
decided  June  25,  1885,  it  was  held  :  In  the  suit  of  a  sub-con- 
tractor against  the  owner  for  materials  furnished  the  general 
contractor,  it  is  unnecessary  to  allege  that  any  part  of  the  price 
agreed  to  be  paid  remained  due  to  the  latter  from  the  owner 
when  notice  was  given. 

The  mechanics'  lien  law,  as  amended  by  the  act  of  1874-75, 
page  437,  section  5,  does  not  require  the  sub-contractor  to 
notify  the  owner  at  the  time  the  labor  is  done  or  the  materials 
furnished.  It  is  sufficient  if  the  notice  be  given  at  any  time 
thereafter,  and  within  twenty  days  after  the  building  has  been 
completed  or  the  work  otherwise  terminated;  but  he  is  not 
obliged  to  wait  until  other  work  on  the  building,  with  which  he 
has  no  concern,  is  performed,  before  he  gives  his  notice. 

In  the  case  of  the  S.  V.  R.  R.  Co.  vs.  Miller,  -80  Va.,  821, 
decided  October  1,  1885,  it  was  held  :  As  soon  as  a  sub-con- 
tractOr  has  furnished  labor  or  materials,  he  may  give  notice  to 
the  owner,  and  may  furnish  the  affidavit  at  any  time  within 
twenty  days  after  the  completion  of  the  building  or  termination 
of  the  work ;  and  without  regard  as  to  state  of  accounts  between 


Citations  to  the  Code  of  Vieginia.  291 

the  owner  and  the  general  contractor,  the  owner,  upon  proper 
notice  and  affidavit,  is  liable  absolutely  to  the  sub-contractor  for 
the  amount  named  in  the  affidavit.  Section  8  secures  to  sub- 
contractor by  Section  4,  provided  notice  is  given  by  the  former 
before  the  lien  is  discharged.  This  remedy  is  additional  to 
that  conferred  by  Section  5,  which  gives  to  the  sub- contractor, 
upon  compliance  with  his  request,  the  right  to  discharge  the 
owner  personally.  Under  Section  8  regard  is  had  as  to  the 
state  of  accounts  between  the  owuer  and  the  general  contractor. 
Under  Section  5  none  is  had. 

In  the  case  of  N.  t&  W.  R.  R.  Co.  vs.  Howison^  81  Va.,  125, 
decided  December  3, 1885,  it  was  held  :  In  declarations  by  sub- 
contractor against  owner  under  mechanics'  Hen  law,  it  is  un- 
necessary to  aver  that  the  account  alleged  to  have  been  furnished 
defendant  was  approved  by  general  contractor;  or  that  latter, 
after  ten  days'  notice  thereof,  had  failed  to  object  to  it,  or  that 
same  had  been  ascertained  to  be  due  from  latter  to  sub-con- 
tractor, according  to  Section  6.  These  are  matters  of  defence. 
Nor  is  it  necessary  to  aver  when  alleged  notice  was  given  de- 
fendant ;  nor  that,  when  notice  was  given,  he  owed  anything  to 
general  contractor.  Notice  and  affidavit  having  been  furnished, 
as  required  by  law  by  sub- contractor  to  owner,  the  latter  is  lia- 
ble to  former  to  amount  named  in  the  affidavit,  regardless  of 
state  of  accounts  between  owner  and  general  contractor.  No- 
tice may  be  furnished  owner  by  sub-contractor  at  any  time  be- 
tween doing  the  labor  or  furnishing  the  material,  and  twenty 
days  after  building  is  completed  or  work  otherwise  terminated ; 
but  affidavit  must  be  furnished  within  said  period  of  twenty  days. 

In  the  case  of  Kirn  vs.  Champion  Iron  tence  CoTnpany,  86 
Va.,  608,  decided  Februar}'  6,  1890,  it  was  held :  Under  Code 
1873,  Chapter  115,  as  amended  by  Acts  1883-84,  pages  636, 
637,  in  action  against  owner  by  sub-contractor  whose  account 
is  disputed  by  general  contractor,  it  is  not  sufficient  for  sub- 
contractor to  show  that  he  has  served  his  notice  and  filed  his 
account  as  provided  by  Section  5,  but  he  must  also  aver  and 
prove  that  he  has  complied  with  his  contract  with  the  general 
contractor,  under  which  the  materials  were  furnished. 

In  the  case  of  Sergeant  et  ux.  vs.  Denhy  et  als.,  87  Va.,  206, 
decided  December  11,  1890,  it  was  held:  Mrs.  S.  bargained 
with  general  contractors,  D.  &  W,,  to  build  two  houses  on  two 
distinct  lots,  for  an  entire  price,  and  the  latter  bargained  with 
sub-contractor,  D.,  to  furnish  entire  materials  for  the  entire 
work,  and  the  work  is  done  and  the  materials  furnished  accord- 
ingly. Held:  The  lien  of  the  general  contractors  and  of  the 
sub-contractor  is  joint  on  both  houses,  under  this  section. 

Section  2476. 
In  the  case  of  ShacJcleford  vs.  Beck,  80  Va.,  573,  decided  June 


292  Citations  to  the  Code  of  Virginia. 

25,  1885,  it  was  held :  The  remedy  by  lien  under  Code  1873,. 
Chapter  115,  Sections  2,  3,  and  4,  is  a  creature  of  statute  un- 
known to  the  common  law;  and  in  order  to  entitle  a  contractor 
to  its  benefits,  he  must  strictly  pursue  the  statute.  The  statute 
requires  that  a  contractor  seeking  to  secure  the  benefit  of  its 
provisions  shall  file  in  the  clerk's  office  an  account  (which  is  an 
itemized  or  detailed  statement  of  the  transaction  to  which  it 
relates)  of  work  done  and  materials  furnished ;  and  therefore  a 
paper  in  the  following  words,  viz.,  "To  balance  of  account  ren- 
dered for  labor  and  work  done  and  material  furnished  for  your 
house,"  is  not  sufficient  to  create  the  lien  provided  by  the  statute. 
The  contractor  having  failed  to  secure  a  lien  on  the  house  by 
his  omission  to  fulfil  the  requirements  of  the  statute,  a  pur- 
chaser of  the  house  from  the  owner  is  not  affected  with  liability 
for  the  contractor's  claim,  by  reason  even  of  actual  notice  of  the 
account  thereof. 

In  the  case  of  Lester  v.  Pedigo,  84  Va.,  309,  decided  January 
12,  1888,  it  was  held :  Where  a  verified  account  of  the  number 
and  price  of  materials  furnished  is  filed  Math  the  claim  for  a  lien 
on  a  certain  building,  with  so  much  land  therewith  as  shall  be 
necessary  for  the  convenient  use  of  the  premises,  and  notice  is- 
served  of  claim  for  the  lien  and  of  a  motion  to  enforce  the  same 
at  the  first  day  of  the  next  term,  and  the  motion  was  on  that  day 
docketed  and  continued  until  the  sixth  day  of  the  term,  when  it 
was  heard,  the  proceedings  conform  to  the  statute,  and  are 
regular. 

In  the  case  of  the  Trustees  Franklin  Street  Church  vs.  Davis, 
85  Va.,  193,  decided  August  9,  1888,  it  was  held :  The  provi- 
sions of  the  mechanics'  lien  act  are,  each  and  all,  indispensable 
to  the  creation  of  the  lien,  and  hence,  if  any  one  of  them  be 
omitted,  no  lien  is  acquired. 

The  contract  for  erecting  the  building  provides  that  it  shall 
be  considered  completed  before  the  "  finishing  touches"  are  put 
on  it.  Held :  The  ninety  days  within  which  the  statute  allows 
a  mechanics'  lien  to  be  filed  commences  from  that  time,  and  not 
from  the  actual  completion. 

In  the  case  of  Moore  vs.  Eolin,  89  Va.,  107,  decided  June  16, 
1892.  A  sub-contractor  files  a  mechanic's  lien  before  the  com- 
pletion of  the  work,  contrary  to  the  Code,  Section  2476.  Held : 
He  is  liable  to  an  action  for  damages  for  ihjury  thereby  done 
the  contractor.  In  such  action  the  declaration  should  charge 
some  special  damage  to  the  plaintiff,  as  the  language  of  the 
alleged  hen  does  not  necessarily  import  injurious  defamation ; 
but  it  IS  not  necessary  to  give  the  name  of  any  one  whose  custom 
has  been  lost  to  the  plaintiff,  nor  to  state  that  the  alleged  lien 
has  been  ended  by  Hmitation  or  decree. 


Citations  to  the  Code  op  Virginia.  293 

Section  2479. 

In  the  case  of  the  Roanoke  Land  and  Improvement  Company 
vs.  Karn  <&  Ilickson  :  Sume  vs.  Snead  c&  Winston,  80  Va.,  589, 
decided  June  25,  1885,  it  was  held :  In  the  suit  of  a  sub-con- 
tractor against  the  owner  for  materials  furnished  the  general 
contractor,  it  is  unnecessar}'  to  allege  that  any  part  of  the  price 
agreed  to  be  paid  remained  due  to  the  latter  from  the  owner 
when  notice  was  given. 

The  mechanics'  lien  law,  as  amended  by  the  act  of  1874-'75, 
page  437,  Section  5,  does  not  require  a  sub-contractor  to  notify 
the  owner  at  the  time  the  labor  is  done  or  the  materials  fur- 
nished. It  is  sufficient  if  the  notice  be  given  at  any  time  there- 
after, and  within  twenty  days  after  the  building  has  been  com- 
pleted, or  the  work  otherwise  terminated.  But  he  is  not  obliged 
to  wait  until  other  work  on  the  building,  with  which  he  has  no 
concern,  is  performed,  before  he  gives  his  notice. 

In  the  case  of  the  S.  V.  R.  R.  Co.  vs.  Miller,  80  Va.,  821,  de- 
cided October  1,  1885,  it  was  held:  As  soon  as  a  sub-contractor 
has  furnished  labor  or  materials  he  may  give  notice  to  the 
owner,  and  may  furnish  the  affidavit  at  any  time  within  twenty 
days  after  the  completion  of  the  building  or  termination  of  the 
Avork  ;  and  without  regard  as  to  the  state  of  accounts  between 
the  owner  and  the  general  contractor,  the  owner,  upon  proper 
notice  and  affidavit,  is  liable  absolutely  to  the  sub-contractor 
for  the  amount  named  in  the  affidavit. 

Section  8  secures  to  sub-contractor  by  Section  4,  provided 
notice  is  given  by  the  former  before  the  lien  is  discharged. 
This  remedy  is  additional  to  that  conferred  by  Section  5,  which 
gives  to  a  sub-contractor,  upon  compliance  with  his  require- 
ments, the  right  to  discharge  the  owner  personally.  Under 
Section  8  regard  is  had  as  to  the  state  of  accounts  between  the 
owner  and  the  general  contractor.  Under  Section  5  none  is 
had. 

In  the  case  of  the  iV.  <&  W.  R.  R.  Co.  vs.  Hovnson,  81  Va., 
125,  decided  December  3,  1885,  it  was  held :  Notice  may  be 
furnished  the  owner  by  the  sub-contractor  at  any  time  between 
doing  the  labor  or  furnishing  the  materials,  and  twenty  days 
after  the  building  is  completed  or  the  work  otherwise  termi- 
nated; but  affidavit  must  be  furnished  within  said  period  of 
twenty  days. 

Section  2484. 

In  the  case  of  the  Bailey  Construction  Company  vs.  Purcell,  88 
Va.,  300,  decided  July  23,  1891,  it  was  held:  Where  the  object 
of  the  suit  is  to  enforce  an  alleged  mechanics'  lien,  the  suit  is 
one  of  equitable  jurisdiction. 

Where  the  chancery  court  takes  cognizance  of  a  suit,  the  ob- 
ject whereof  is  to  enforce  an  alleged  mechanics'  lien,  and  a  cross 


294  Citations  to  the  Code  of  Virginia. 

bill  is  filed,  and  all  the  evidence  appears  in  the  record,  this 
court  will  review  the  action  of  the  court  below,  and  decree  ac- 
cording to  the  very  right  of  the  case. 

Section  2498. 
In  the  case  of  Stimson  vs.  Bisliop  et  als.^  82  Ya.,  190,  decided 
July  1,  1886,  it  was  held:  Mortgage  secures  the  debt;  no 
change  in  the  form  of  the  evidence  or  mode  or  time  of  payment ; 
nothing  short  of  actual  payment  or  express  release  of  the  debt 
win  discharge  the  mortgage.  Transfer  of  the  debt  carries  with 
it  the  security,  without  assignment  or  delivery  thereof. 

CHAPTEE  CXI. 

Section  2500. 

In  the  case  of  Turner  vs.  Stip,  1  Washington,  319,  decided 
at  the  fall  term,  1794,  it  was  held :  Where  a  deed  is  improperly 
attested,  and  only  one  witness  offered  to  prove  its  execution,  the 
deed  cannot  be  admitted  to  record. 

In  the  case  of  Pollard  vs.  Lively,  2  Grat.,  216,  decided  July, 
1845,  it  was  held :  The  clerk  of  a  county  or  corporation  court 
has  no  authority  to  admit  to  record  a  deed  which  does  not  con- 
vey land  lying  in  his  county  or  corporation  ;  and  a  copy  of  such 
a  deed,  authenticated  by  the  clerk,  is  not  competent  evidence  in 
place  of  the  original. 

In  the  case  of  Hmsley  et  als.  vs.  McGarth  <&  Colqtdi,  2  Grat., 
471,  decided  January,  1846,  it  was  held :  Where  a  deed  conveys 
several  tracts  of  land  lying  separately  in  different  counties,  the 
recordation  thereof  in  only  one  of  the  counties  is  not  effectual 
in  regard  to  the  tract  or  tracts  lying  in  the  other  counties,  with- 
in the  true  intent  and  meaning  of  the  statutes  regulating  con- 
veyances. 

Where  a  navigable  stream  is  the  dividing  line  between  two 
counties,  and  so  separates  lands  conveyed  by  deed  as  to  throw 
part  thereof  into  the  county  on  one  side  of  said  stream  and 
part  thereof  into  the  county  on  the  opposite  side  of  the  same, 
the  parts  so  separated  must  be  regarded  as  distinct  tracts  lying 
in  different  counties,  within  the  true  intent  and  meaning  of  the 
statute  of  conveyances. 

A  variance  in  the  date  as  it  appears  in  the  deed  certified  by 
the  justices,  and  in  their  certificate,  does  not  avoid  the  registrv 
of  the  deed,  if  the  identity  of  the  deed  certified  and  the  deed 
recorded  is  satisfactorily  ascertained  by  other  parts  of  the  cer- 
tificate, and  the  annexation  thereof  to  the  deed. 

The  endorsement  of  the  clerk  on  the  deed  of  the  day  when  it 
was  left  with  him  to  be  recorded,  and  his  return  to  the  court  of 
deeds  left  with  him  to  be  recorded,  is  not  conclusive  as  to  the 


Citations  to  the  Code  of  Virginia.  295 

day  when  the  deed  was  so  left ;  but  the  true  day  may  be  shown 
by  parol  testimony.  The  carrying  the  deed  to  the  clerk's  office 
to  be  recorded  is  not  enough  to  made  it  good  as  a  recorded 
deed  from  that  day.  It  must  be  left  with  the  clerk  to  be  re- 
corded. 

In  the  case  of  Johnson  and  Tr?[/e  vs.  Slater  et  als.,  11  Grat., 
321,  decided  July,  1854,  it  was  held :  A  husband  is  not  a  com- 
petent subscribing  witness  to  a  deed  executed  during  the  mar- 
riage, by  which  real  estate  is  conveyed  to  the  wife,  either  for 
the  purpose  of  proving  the  due  execution  of  the  deed  when 
called  in  question,  or  for  the  purpose  of  having  it  admitted  to 
record. 

A  deed  admitted  to  record  upon  proof  by  the  subscribing  wit- 
nesses, one  of  whom  was  the  husband  of  the  grantee,  is  null  and 
void  as  to  the  creditors,  not  having  been  duly  recorded. 

In  the  case  of  Peyton  et  als.  vs.  Carr's  Executor,  85  Va.,  456, 
decided  November  8,  1888.  Where  record  of  county  court 
shows  that  "  at  a  court  held  for  a  county  on  4th  of  February, 
1867,  this  deed  was  produced  into  court,  and  being  duly  ac- 
knowledged according  to  law,  was  thereupon  ordered  to  be  re- 
corded," held :  Sufficient  proof  of  valid  recordation. 

In  the  case  of  Bowden  vs.  Parrish,  86  Va.,  67,  decided  April 
25,  1889,  it  was  held :  Acknowledgment  of  deed  by  grantor  be- 
fore the  trustee  as  officer  is  invahd,  and  its  recordation  upon 
such  acknowledgment  does  not  give  constructive  notice. 

In  the  case  of  Corey  vs.  Moore,  86  Va.,  721,  decided  March 
27,  1890,  it  was  held :  Grantee  or  beneficiary  in  deed  cannot,  as 
an  officer,  take  the  acknowledgment  of  grantor,  and  deed  ad- 
mitted to  record  on  certificate  thereof  cannot  affect  a  notice 
under  the  registry  laws ;  but  when  trust  deed  describes  trustee 
as  "L.  TripLett,  Jr.,"  and  the  cei-tificate  begins  "I,  L.  Triplett, 
Jr.,  a  notary  public,"  etc.,  but  is  signed  "L.  Triplett,  N.  P.,"  the 
inference  is  that  the  trustee  and  the  notary  are  different  per- 
sons. 

In  the  case  of  Ilockrnan  vs.  McClanaKan,  87  Va.,  33,  decided 
November  6,  1890,  it  was  held  :  The  certificate  of  feme  covert's 
acknowledgment  of  deed  must  comply  substantially  with  every 
requisite  of  the  statute.  Her  examination  must  be  privy,  and 
the  deed  must  be  explained  to  her,  and  then  she  must  (1),  ac- 
knowledge the  deed  to  be  her  act;  (2),  declare  that  she  will- 
ingly executed  it ;  and  (3),  does  not  now  wish  to  retract  it. 

In  the  case  of  Barton  vs.  Brent,  87  Va.,  385,  decided  January 
29,  1891,  it  was  held :  Deed  of  trust  by  husband  and  wife  to  a 
trustee,  who,  as  a  notary,  took  their  acknowledgment,  the  re- 
cordation is  invalid  as  to  both,  and  the  deed  wholly  void  as  to 
the  wife  ;  and  as  to  the  husband,  valid  only  between  the  parties 
and  to  third  persons  having  notice  thereof. 


296  Citations  to  the  Code  of  Virginia. 

Section  2501. 

In  the  case  of  Davis  et  als.  vs.  Beazley  et  als.,  75  Va.,  491, 
decided  April  28,  1881,  it  was  held  :  A  grantee  in  a  deed,  or  a 
beneficiary  under  it,  is  not  allowed,  as  an  officer,  to  take  an  ac- 
knowledgment of  the  deed  by  the  grantor  with  a  view  to  its 
registration.  The  certificate  to  such  acknowledgment  is  invalid 
as  authority  to  admit  the  deed  to  record,  and  hence  a  recorda- 
tion based  upon  it  is  without  effect  as  notice  by  construction 
under  the  registry  laws.  The  clerk  of  the  county  court  cannot 
take  his  own  acknowledgment  of  a  deed  executed  by  him,  so  as 
to  render  it  vaKd  as  against  a  subsequent  purchaser  for  value 
fi'om  him  as  a  deed  admitted  to  record. 

In  the  case  of  the  Virginia  Coal  and  Iron  Company  vs.  Roher- 
8on,  88  Va.,  116,  decided  June  25,  1891,  it  was  held :  Whilst 
literal  compliance  with  the  statute  is  not  necessary,  yet  the  cer- 
tificate of  acknowledgment  must  show  substantial  conformity 
with  every  requisite  of  the  statute. 

Section  2502. 

In  the  case  of  Bowden  vs.  Parrish,  86  Va.,  67,  decided  April 
25,  1889,  it  was  held :  Acknowledgment  of  the  deed  by  the 
grantor  before  the  trustee,  as  an  officer,  is  invalid,  and  does  not 
give  constructive  notice. 

In  the  case  of  Barton  vs.  Brent,  87  Va.,  385,  decided  January 
29,  1891,  it  was  held :  Deed  of  trust  by  husband  and  wife  to  a 
trustee,  who,  as  notary,  took  their  acknowledgment,  the  recorda- 
tion in  invalid  as  to  both,  and  the  deed  wholly  void  as  to  the 
wife ;  and  as  to  the  husband,  valid  only  between  the  parties  and 
to  third  persons  having  notice  thereof. 

Section  2510. 

In  the  case  of  Boiling  vs.  Teel  et  als.,  76  Va.,  487  : 
Chancery  Practice — Partition. — Commissioners  to  make  par- 
tition allot  land  to  husband,  instead  of  to  his  wife,  whose  in- 
heritance it  was,  and  their  report  is  confirmed  by  the  court.    No 
conveyances  are  directed  or  made.     Held : 

1.  The  husband  acquired  no  title  by  the  proceedings. 

2.  The  decree  of  partition  does  not  of  itself  operate  as  a  con- 
veyance by  the  parties,  if  sui  juris,  and  by  a  commissioner  for 
those  non-sui  juris. 

3.  Registration  of  partition  or  assignment  of  dower  does  not 
alter  this  rule  of  chancery,  but  only  gives  notice  of  the  decree. 

CHAPTER  CXII. 
Section  2512. 
In  the  case  of  Browne  vs.  Bockover,  84  A^a.,  424,  decided  Jan- 


I 


Citations  to  the  Code  of  Virginia.  297 

nary  26,  1888,  it  was  held :  Estate  by  the  curtesy  consummate 
exists  in  husband  in  wife's  lands  unaliened  by  her  during  her 
lifetime,  though  devised  by  her  will.  Such  estate  is  subject  to 
the  liens  of  the  husband's  creditors  acquired  during  the  cover- 
ture in  preference  to  the  general  liens  of  her  creditors  upon  her 
real  estate. 

Section  2513. 

In  the  case  of  Chapman  vs.  Price,  83  Va.,  392,  decided  June 
14,  1886,  it  was  held :  The  power  of  alienation  by  deed  inter 
vivos,  or  by  will,  is  an  incident  to  the  separate  estate,  and  if  not 
expressly  or  impliedly  restricted,  always  exists  in  the  married 
woman  just  as  if  she  were  sole,  and  if  exercised  effectually,  ex- 
cludes the  husband's  rights  by  curtesy  or  otherwise. 

In  a  grant  by  parents  of  estate  of  inheritance  to  a  married 
daughter  occurs  the  following  habendum :  "To  have  and  to  hold 
in  her  own  right,  free  from  the  claims  or  demands  of  her  husband, 
or  any  person  claiming  under,  or  through  or  against  him  in  any 
way,  now  or  at  any  time  hereafter."  Afterwards  the  wife,  by 
her  will,  devised  the  land  to  her  children,  and  died,  leaving 
her  husband  her  surviving.  His  creditors  brought  their  bill 
to  subject  his  supposed  curtesy  in  the  land  to  his  debts. 
Held  :  The  terms  of  the  devise  created  a  separate  estate  in  the 
wife,  with  power  of  alienation,  which  she  exercised,  and  thereby 
precluded  her  husband  and  all  claiming  under  him  from  all 
claim  on  the  land. 

Section  2514. 

In  the  case  of  Lewis  Neil  et  als.  vs.  Abram  Neil  et  als.,  1 
Leigh,  6,  decided  February,  1829,  it  was  held :  An  attestation 
of  a  will  of  lands,  made  in  the  same  room  with  the  testator,  is 
prirna  facie  an  attestation  in  his  presence,  according  to  the 
statute  of  Avills.  An  attestation  not  made  in  the  room,  \b  prima 
facie,  not  an  attestation  in  his  presence ;  but  as  in  the  one  case 
the  attestation  is  good,  if  shown  to  have  been  made  within  the 
scope  of  the  testator's  view  from  his  actual  position,  so  in  the 
other,  it  is  not  good  if  it  appear  that  in  the  actual  relative  position 
of  the  testator  and  the  witness,  he  could  not  possibly  have  seen 
the  act  of  attestation,  nor  have  so  changed  his  situation  as  to 
have  enabled  him  to  see  it  without  aid  from  others,  which  was 
at  hand,  but  was  neither  asked  nor  given. 

In  the  case  of  Boyd  et  als.  vs.  Cook,  Executor  of  Vass,  3 
Leigh,  32,  decided  May,  1831,  it  was  held  :  The  will  of  a  blind 
man  shall  be  admitted  to  probate  and  record  as  a  will  of  real  as 
well  as  personal  estate,  if  attested  at  his  request  in  the  same 
room  with  him,  though  it  be  not  proved  that  the  will  was  read 
in  the  presence  of  the  attesting  witnesses,  or  that  it  was  ever 
read  to  him,  provided  it  appears  satisfactorily  to  the  court  that 


298  Citations  to  the  Code  of  Yieginia. 

he  was  acquainted  with  its  contents,  and  intended  to  make  the 
testamentary  dispositions  therein  contained. 

A  court  of  probate  occupies  the  place  of  a  jury  as  to  ques- 
tions of  fact,  and  its  province  is,  like  that  of  a  jury,  to  draw  all- 
just  inferences  from  the  evidence. 

In  the  case  of  Walle?'  et  als.  vs.  Waller,  1  Grat.,  454,  decided 
March,  1845.  A  will,  wholly  in  the  handwriting  of  the  testator, 
commenced,  "I,  J.  W.,  of  the  county  of  H.  and  State  of  Vir- 
ginia, calling  to  mind  the  uncertainty  of  human  life,  and  being 
desirous  to  dispose  of  all  such  estate  as  it  hath  pleased  God  to 
bless  me  with,  I  give  and  bequeath  the  same  in  manner  follow- 
ing." He  then  proceeded  to  dispose  of  the  whole  of  his  estate, 
real  and  personal,  and  concluded  thus :  "  In  witness  whereof,  I 

have  hereunto  set  my  hand  this day  of ,  1841 ;  signed 

and  acknowledged  in  the  presence  of ."     The  blank  for 

the  date  was  not  filled  up,  and  the  testator's  name  not  sub- 
scribed to  the  paper,  nor  were  there  any  attesting  witnesses. 
Held :  The  will  was  not  well  executed.  The  finality  of  the  tes- 
tamentary intent  must  be  ascertained  from  the  face  of  the  paper, 
and  extrinsic  evidence  is  not  admissible  either  to  prove  or  dis- 
prove it. 

The  signing  a  will,  to  be  a  sufficient  signing  under  the  statute^ 
must  be  such  as,  upon  the  face  and  from  the  frame  of  the  in- 
struments, appears  to  have  been  intended  to  give  it  authen- 
ticity. It  must  appear  that  the  name  written  was  regarded  as 
a  signature,  and  that  the  instrument  was  complete  without  fur- 
ther signature ;  and  the  paper  itself  must  show  this. 

In  the  case  of  Pollock  et  ux.  vs.  Glassell,  2  Grat.,  439,  decided 
January,  1846.  A  marriage  settlement  gives  a  power  to  the 
wife  to  dispose  of  the  settled  estate  by  gift  or  devise,  under  her 
hand  and  seal,  attested  by  two  or  more  witnesses.  Held :  That 
a  testamentary  paper  signed  by  the  wife,  with  a  scroll  annexed 
to  her  name,  and  attested  by  the  requisite  number  of  witnesses, 
though  the  scroll  is  not  recognized  in  the  body  of  the  instru- 
ment, is  a  valid  will  under  the  power.  That  such  a  paper^ 
duly  executed,  referring  to  and  recognizing  another  testamen- 
tary paper,  previously  executed  according  to  the  statute  con- 
cerning wills,  but  not  according  to  the  power,  will  constitute  the 
paper  recognized  a  vaHd  testamentary  paper.  To  give  validity 
to  the  paper  recognized,  it  is  not  necessary  that  it  should  be 
incorporated  into  the  paper  recognizing  it.  It  is  not  necessary 
that  the  attestation  clause  shall  state  that  the  paper  was  duly 
signed  and  sealed  by  the  testatrix;  that  parol  evidence  is  ad- 
missible to  show  that  the  scroll  was  put  upon  the  paper  bv  the 
direction  of  the  testatrix,  as  a  seal.  Though  the  name  of  the 
witness  was  put  to  the  paper,  not  as  a  witness,  but  for  some 


Citations  to  the  Code  of  Vikginia.  299 

other  reason,  yet  if  the  testatrix  afterwards  requests  the  witness 
to  attest  the  paper,  and  she  adopts  the  signature  already  there, 
it  is  a  valid  attestation.  Quaere  :  Whether  an  assignment  under 
hand  and  seal,  absolute  on  its  face,  but  not  delivered,  and  in- 
tended to  operate  only  at  the  death  of  the  assignor,  may  be  valid 
as  a  testamentary  paper? 

In  the  case  of  Tiosser  vs.  Franklin,,  6  Grat.,  1,  decided  April, 
1849.  It  is  not  necessary  that  the  subscribing  witnesses  to  a 
will  should  see  the  testator  sign,  or  that  he  should  acknowledge  to 
them  the  subscription  of  his  name  to  be  his  signature,  or  even 
that  the  instrument  is  hjs  will.  It  is  enough  that  he  should 
acknowledge  in  their  presence  that  the  act  is  his,  with  a  know- 
ledge of  the  contents  of  the  instrument,  and  with  the  design 
that  it  should  be  testamentary  disposition  of  his  property. 

If  the  paper  has  been  signed  by  the  testator,  such  an  acknow- 
ledgment is  a  recognition  and  ratification  of  his  signature  as 
having  been  made  for  him  in  his  presence  and  by  his  direc- 
tions. 

A  testamentary  paper  appears  on  its  face  to  be  signed  with 
the  name  and  mark  of  the  testatrix,  and  subscribed  with  two 
names  of  the  attesting  witnesses,  and  with  the  name  and  mark 
of  a  third.  The  two  first  witnesses  are  dead,  and  their  hand- 
writing is  proved,  and  it  is  proved  that  the  body  of  the  will  and 
the  testatrix,  and  of  the  last  witness,  are  all  in  the  handwriting 
of  the  first  witness  ;  the  name  of  the  last  witness  having  been  so 
written  at  his  request;  that  the  witnesses  attest  the  will  at 
the  request  of  the  testatrix,  and  in  her  presence,  at  the  same 
time.  It  was  a  question  whether  the  testatrix  made  her  mark 
before  the  attestation  of  the  paper  by  the  witnesses,  or  im- 
mediately after  the  last  had  made  his  mark,  and  in  their 
presence.  Held  :  If  the  testatrix  made  her  mark  after  the  attes- 
tation of  the  witnesses,  and  her  so  doing  was  an  after-thought, 
and  not  in  pursuance  of  any  design  conceived  prior  to  the  attes- 
tation ;  but  at  the  time  she  acknowledged  the  paper,  there  was 
no  design  on  her  part  to  affix  her  mark  to  it ;  then  the  making 
her  mark  was  a  work  of  supererogation,  and  did  not  afiect  the 
validity  of  the  previous  acknowledgment. 

The  fact,  whether  in  the  order  of  time  the  testatrix  made  her 
mark  before  or  after  the  subscribing  witnesses  made  their 
subscription,  is  not  material  where  the  whole  transaction  may 
be  regarded  as  one  continuous,  uninterrupted  act,  conducted 
and  completed  within  a  few  minutes,  whilst  all  concerned  in  it 
continued  present,  and  during  the  unbroken  supervising,  attest- 
ing attention  of  the  subscribing  witnesses. 

In  the  case  of  Jesse  et  als.  vs.  Parker's  Administrators  et  als., 
6  Grat.,  57,  decided  April,  1849,  it  was  held :  Upon  an  issue 


I 


300  Citations  to  the  Code  of  Virginia. 

devisavit  vel  non,  the  verdict  of  the  jury  in  favor  of  the  will,  ap- 
proved by  the  court  before  which  the  issue  is  tried,  concludes 
all  mere  questions  of  fact  depending  upon  the  credit  to  be  given 
to  the  witnesses.  And  therefore,  in  such  case  in  an  appellate 
court,  it  must  be  taken  that  all  the  requirements  of  the  statute, 
in  order  to  establish  a  will,  were  satisfactorily  proved,  and 
the  identity  of  the  paper  is  one  of  the  facts  settled  by  the 
verdict. 

It  is  settled  law  that  a  subscribing  witness  may  attest  a  will 
by  making  his  mark,  his  name  being  written  by  another  in  his 
presence  and  at  his  request. 

The  validity  of  such  an  attestation  depends  upon  the  signing 
the  name  of  the  witness  by  his  authority  and  in  his  presence, 
and  not  upon  the  fact  of  his  making  a  mark,  or  doing  some 
manual  act  in  connection  with  the  signature. 

Although  there  must  be  satisfactory  proof  that  every  statu- 
tory provision  has  been  complied  with,  in  order  to  establish  a 
will,  the  law  does  not  prescribe  the  mode  of  proof,  nor  that  the 
will  shall  be  proved  as  well  as  attested  by  a  specified  number  of 
witnesses. 

In  the  case  of  Johnson  vs.  Dunn,  6  Grat.,  625,  decided  January, 
1850,  it  was  held :  A  testamentary  paper  appears  to  be  attested 
by  two  witnesses,  but  one  of  them  is  not  a  creditable  witness, 
and  his  attestation  is  not  proved  by  the  other  attesting  witness, 
or  any  other  person.  Held :  The  paper  is  not  so  proved  as  to 
be  admitted  to  probate. 

In  the  case  of  Moore  vs.  Moore's  Executor  et  als.,  8  Grat.,  307, 
decided  October,  1851,  it  was  held :  Qumre  :  Whether  an  attes- 
tation of  a  will  out  of  the  room  in  which  the  testator  is  lying, 
and  out  of  his  sight,  but  in  a  case  in  which  the  testator  is  able, 
and  might  have  placed  himself  in  a  position  to  see  the  witnesses 
when  they  signed  the  paper,  is  valid  attestation  ?  A  court  of 
four  judges  equally  divided  upon  the  question. 

_  In  the  case  of  Sturdivant  et  at.  vs.  Birchett,  10  Grat.,  67  de- 
cided April,  1853.  A  will  is  executed  by  the  testator,  and  cer- 
tain persons  are  requested  by  him  to  attest  it.  Tor  convenience 
they  take  it  into  another  room,  out  of  the  vision  of  the  testator, 
and  there  subscribe  their  names  to  the  paper  as  witnesses,  and 
they  immediately,  within  one  or  two  minutes,  returned  to  the  tes- 
tator with  the  paper,  and  one  of  them  in  the  presence  of  the 
other,  with  the  paper  open  in  his  hand,  addresses  the  testator 
and  says,  "  here  is  your  will  witnessed,"  at  the  same  time  point- 
ing to  the  names  of  the  witnesses,  which  are  on  the  same  page 
and  close  to  the  name  of  the  testator.  The  testator  then  takes 
the  paper  and  looks  at  it  as  if  examining  it,  and  then  folds  it  up, 
and  speaks  of  it  as  his  will.     Held :  That  under  these  circum- 


Citations  to  the  Code  of  Yirginia.  301 

stances  tlie  recognition  of  tlieir  attestation  bj  the  witnesses  to 
the  testator  is  a  substantial  subscribing  of  their  names  as  wit- 
nesses in  his  presence, 

In  the  case  of  Nock  vs.  Nock's  Executors,  10  Grat.,  106,  de- 
cided Aj)ril,  1853.  From  what  circumstances  it  maybe  inferred 
that  the  name  of  a  testator  was  written  in  his  presence,  and  be- 
fore the  acknowledgment  of  the  paper  as  his  will. 

The  witnesses  to  a  will  subscribe  their  names  in  another 
room  from  the  testator,  wjio  though  lying  on  a  bed,  is  able  to  walk 
about ;  but  the  witnesses  are  directly  within  the  range  of  his  vi- 
sion, so  that  he  can  see  all  the  persons  except  the  forearm  and 
writing  hand,  those  being  hid  from  him  by  the  body  of  the  wit- 
ness whilst  he  is  subscribing  his  name ;  it  may  be  inferred,  too, 
that  he  may  see  the  paper  as  it  lies  on  the  bureau  or  desk 
where  the  witnesses  subscribe  their  names.  Held :  The  wit- 
nesses subscribe  their  names  in  the  presence  of  the  testator, 
within  the  meaning  of  the  statute. 

In  the  case  of  Parramore  vs.  Taylor,  11  Grat.,  220,  decided 
April,  1854,  it  was  held :  The  Code  of  1849,  Chapter  122,  Sec- 
tion 4,  p.  516,  in  relation  to  attestation  of  wills,  does  not  re- 
quire that  the  witnesses  shall  subscribe  their  names  in  the  pre- 
sence of  each  other.  T.  subscribes  his  name  to  his  will  in  the 
presence  of  C,  and  requests  C.  to  attest  it,  who  does  so.  B.  is 
then  called  into  the  room,  and  T.  again  acknowledges  the  paper 
as  his  will,  and  requests  B.  to  attest  it,  who  does  so,  C.  being 
present  when  T.  acknowledges  the  paper  to  B.,  but  not  sub- 
scribing it  or  recognizing  his  subscription  at  that  time,  the 
whole,  however,  being  done  within  a  few  minutes.  This  will 
was  duly  attested. 

In  the  case  of  Beane  et  ux.  vs.  Yerhy,  12  Grat.,  239,  decided 
March  6,  1855.  C.  subscribed  his  name  to  his  will  in  the  pre- 
sence of  R.  who  wrote  it,  and  requests  R.  to  vdtness  it,  who 
does  so.  H.  is  then  called  into  the  room,  and  requested  by  C. 
to  witness  the  instrument,  and  C.  acknowledges  his  signature  to 
him  in  the  presence  and  hearing  of  R.,  and  H.  subscribes  his 
name  as  a  Avitness  in  the  presence  of  the  testator  and  of  R. 
Held :  The  acknowledgment  of  his  signature  by  C.  was  a  suffi- 
cient acknowledgment  of  the  will. 

Though  the  testator  spoke  of  the  paper  as  an  instrument,  and 
did  not  speak  of  its  contents  to  H.,  yet  knowing  that  it  was  his 
will,  and  knowing  its  contents,  it  was  a  sufficient  publication  of 
it  as  his  will.     The  will  was  duly  executed. 

The  act  of  1849,  Code,  Chapter  122,  Section  4,  does  not 
change  the  former  law,  either  as  to  what  shall  constitute  an 
acknowledgment,  or  a  publication  of  the  Avill. 

In  the  case  of  Green  et  als.  vs.  Crain  et  als.,  12  Grat.,  252,  de- 
cided March  6,  1855.     A  paper  prepared  as  the  will  of  C.  is 


302  Citations  to  the  Code  of  Virginia. 

read  to  him  by  the  scrivener,  and  approved,  and  then  the  scriv- 
ener, at  the  request  of  C,  subscribes  C.'s  name  to  the  paper,  and 
by  lite  request  he  attests  it,  and  no  other  witness  attests  it  in 
the  presence  of  this  one. 

About  three  days  after,  C.  acknowledges  the  paper  as  his 
will  in  the  presence  of  H.,  who  at  his  requests  attests  it  in  his 
presence.  No  other  witness  attests  the  paper  on  that  day ;  but 
about  four  days  after,  H.  is  again  at  the  house  of  C.  with  W., 
when  C.  requests  W.  to  attest  the  paper,  which  W.  does  in  the 
presence  of  H.  and  C,  and  C.  then  acknowledges  the  paper  as 
his  will  in  the  presence  of  H.  and  W.  Held :  The  will  is  duly 
executed. 

In  the  case  of  Ramsey  vs.  Ramsey's  Executors,  13  Grat.,  664, 
decided  February  10,  1857,  it  was  held :  The  name  of  a  testator 
at  the  commencement  of  a  holograph  will  is  an  equivocal  act, 
and  unless  it  appears  .affirmatively  from  something  on  the  face 
of  the  paper  that  it  was  intended  as  his  signature,  it  is  not  a 
sufficient  signing  under  the  statute. 

In  the  case  of  Roy  et  als.  vs.  Roy's  Executor^  16  Grat.,  418, 
decided  November  23,  1863,  it  was  held :  In  a  holograph  will 
the  writing  of  the  name  of  the  testator  at  the  commencement  of 
the  paper  is  an  equivocal  act,  and  therefore  is  not,  of  itself,  a 
sufficient  signing  of  the  paper  to  constitute  it  his  will.  The 
paper  being  folded  up  and  endorsed  by  the  testator  with  his 
name,  "R.'s  will,"  is  not  a  sufficient  signing.  Such  a  paper 
being  offered  for  probate  by  the  nominated  executor,  and  its 
probate  opposed  by  some  of  the  testator's  next  of  kin,  the  costs 
should  be  paid  out  of  the  estate. 

The  reference  to  25  Grat.,  363,  is  an  error.  That  case  is 
upon  the  question  of  the  competency  of  witnesses  as  to  wills. 
See  Section  3346. 

In  the  case  of  Riddel  vs.  Johnson,  26  Grat.,  152,  decided 
April  15,  1875,  it  was  held  :  A  bequest  in  favor  of  an  attorney, 
who  writes  the  will,  is  not  necessarily  invalid.  The  omis  pro- 
handi  lies,  in  every  case,  upon  the  party  propounding  a  will, 
and  he  must  satisfy  the  conscience  of  the  court  that  the  instru- 
ment so  propounded  is  the  last  will  of  a  free  and  capable  tes- 
tator. 

If  a  party  writes  or  prepares  a  will,  under  which  he  takes  a 
benefit,  that  is  a  circumstance  which  ought  generally  to  excite 
the  suspicion  of  the  court,  and  calls  upon  it  to  be  vigilant  and 
jealous  in  examining  the  evidence  in  support  of  the  instrument, 
in  favor  of  which  it  ought  not  to  pronounce  unless  the  suspicion 
is  removed,  and  it  is  judicially  satisfied  that  the  paper  pro- 
pounded does  express  the  true  wiU  of  the  deceased. 

J.  was  an  unmarried  man  with  a  large  property,  having  a 
large  amount  in  bonds.     B.  had  been  his  counsel  for  years,  in 


Citations  to  the  Code  of  Yirginia.  303 

"whom  J.  bad  great  confidence,  and  for  whom  he  had  a  great  re- 
gard. In  February,  1867,  B.  wrote  J.'s  will,  in  which  he  gave 
most  of  his  real  estate  to  a  number  of  his  illegitimate  chil- 
dren, who  were  colored  persons.  He  then  did  not  dispose  of 
his  bonds,  which  were  in  B.'s  hands  for  collection.  In  June 
following,  J.  sent  for  B.  to  write  a  codicil  to  his  will,  and  after 
some  previous  provisions  as  to  real  estate  among  the  same  par- 
ties, and  providing  for  the  payment  of  his  debts  and  expenses  of 
administration,  and  any  orders  he  might  draw  upon  B.  in  his 
lifetime  out  of  the  collection  from  the  bonds,  he  gave  whatever 
remained  of  these  bonds  in  the  hands  of  B.  at  J.'s  death,  to  B. 
absolutely.  J.  had  a  number  of  next  of  kin,  and  among  them, 
two  sisters,  to  none  of  whom  did  he  leave  anything.  It  being 
clearly  proved  that  J.  was  entirely  competent  to  make  a  will ; 
that  he  dictated  the  bequest  in  favor  of  B.  without  any  sugges- 
tion from  B.  or  any  other  person,  and  repeated  it ;  that  it  was 
read  to  him,  and  he  clearly  understood  it,  and  intended  it  to  be 
as  it  was  written ;  and  it  further  appearing  that  he  had  been  on 
bad  terms  with  his  family  for  years,  and  had  expressed  more 
than  once  his  determination  that  none  of  them  should  have  any 
of  his  estate,  the  bequest  to  B.  was  held  to  be  a  valid  bequest. 

In  the  case  of  Cheatham  vs.  Hatcher  et  als.,  30  Grat.,  56,  de- 
cided March,  1878.  A  will  must  be  subscribed,  but  need  not  be 
proven  by  two  attesting  witnesses.  The  testimony  of  a  sub- 
scribing witness  invahdating  the  will  which  he  attested  ought 
to  be  viewed  with  suspicion. 

The  opinion  of  a  physician  on  a  question  of  sanity  is  entitled 
to  peculiar  weight,  particularly  where  he  had  special  opportuni- 
ties of  observation. 

The  fact  that  a  draftsman  of  a  will  will  take  a  benefit  under 
it,  while  it  imposes  upon  the  court  the  duty  of  careful  scrutiny, 
does  not  invalidate  the  will. 

A  request  to  a  witness  to  subscribe  the  will,  made  by  a  third 
person  in  the  hearing  of  the  testator,  is,  in  law,  the  request  of 
the  testator,  if  he  is  conscious  and  does  not  dissent  therefrom. 

In  this  case  the  due  execution  of  the  will  and  the  sanity  of 
the  testatrix  was  proven  by  one  of  the  attesting  witnesses,  whose 
testimony  was  confirmed  by  other  witnesses  and  the  circum- 
stances surrounding  the  transaction.  The  other  subscribing 
witness,  on  the  other  hand,  denied  the  due  execution  and  the 
consciousness  of  the  testatrix,  but  his  testimony  was  impaired 
by  the  circumstance  that  it  was  in  conflict  with  statements  made 
by  him  soon  after  the  execution  of  the  will,  and  was  inconsistent 
with  his  act  in  attesting  the  will.  Held  :  That  the  will  was  duly 
executed  and  should  be  admitted  to  probate. 

In  the  case  of  Peake  vs.  Jenkins,  80  Va.,  293,  decided  March 
12,  1885.   Code  1873,  Chapter  118,  Section  4,  requires  the  attes- 


304  Citations  to  the  Code  of  "Virginia. 

tation  of  two  subscribing  witnesses,  but  no  particular  form  or 
place  on  the  paper,  yet  the  witnesses,  unless  the  will  be  holo- 
graph, must  subscribe  as  witnesses,  though  the  word  witness  need 
not  appear. 

Instrument  propounded  as  the  will  of  J.  is  wholly  written  by 
H.  and  signed  "J.  by  H.,"  and  is  attested  "Witness  L."  L. 
being  dead,  the  instrument  is  probated  on  the  testimony  of  H. 
as  a  subscribing  witness.  Held:  The  instrument  was  not  at- 
tested pursuant  to  the  statute.  H.  did  not  subscribe  as  a  wit- 
ness and  could  not  attest  the  will. 

Instrument  dated  April  13,  1870,  speaks  of  the  testratrix  in 
the  third  person,  and  merely  recites  that  she  had  spoken  to  the 
amanuensis  of  her  wish  to  make  a  will  to  secure  to  her  son,  J., 
two  hundred  dollars  a  year  for  every  year  he  had  been  staying 
at  home  with  her  since  his  father's  death,  and  that  on  the  third 
of  January,  1870,  she  had  asked  the  amanuensis  to  write  her 
will  for  her  to  copy,  etc.  Held :  The  instrument  is  not  testa- 
mentary in  its  character. 

Pollock  vs.  Glassell,  2  Grat.,  440,  is  distinguished  from  the 
case  at  bar  in  that,  though  there  the  name  of  the  witness  was 
put  to  the  paper  not  as  a  witness  but  for  some  other  purpose, 
yet  the  testatrix  requested  the  witness  to  alter  the  paper,  and 
the  witness  adopted  her  signature  already  there ;  whilst  here, 
the  %ntness  signed  as  amanuensis,  and  was  not  requested  to  at- 
test the  paper. 

In  the  case  of  Baldioin  vs.  Baldwin  {Executor,  etc.),  81  Va., 
405,  decided  February  4,  1886.  Entering  room  of  testatrix,  her 
friend  S.  said  to  her :  "  These  gentlemen,  F.  and  R.,  have  come 
to  witness  the  will."  She  bowed  her  head  in  assent.  The  will 
was  read  to  her  by  F.  in  an  audible  voice ;  and  on  being  asked 
if  she  understood  it,  she  signified  her  assent  as  before.  She 
then  signed  the  will  in  a  legible  manner,  her  arm  being  held  to 
steady  it,  but  the  pen  not  being  touched.  She  was  then  laid 
back  in  a  recumbent  posture  as  before,  and  the  witnesses,  F.  and 
R.,  subscribed  the  will  at  a  table  in  a  little  room  near  the  foot 
of  the  bed,  in  her  presence,  both  being  present  together.  She 
was  so  lying  that  she  was  compelled  to  see  them,  unless  she 
shut  her  eyes  or  turned  her  head  away.  Held :  Such  will  was 
duly  executed  as  required  by  statute.  Ide^n.  What  is  such 
presence  ?  In  company  with,  in  the  same  room  with,  within  the 
view  of  the  testator,  coupled  with  consciousness  on  his  pai-t  of 
such  proximity. 

In  the  case  of  Perkins  vs.  Jones,  84  Va.,  358,  decided  Jan- 
uary 19,  1888,  it  was  held:  A  will  wholly  written  and  signed 
and  sealed  by  the  testator  who  is  of  sound  mind,  containing  an 
attesting  clause  unsigned  by  witnesses  is  valid,  and  another 
paper  of  testamentary  character,  bearing  the  same  date,  and 


Citations  to  the  Code  of  Virginia.  305 

found  folded  up  with  said  will  and  written  and  signed  by  the 
said  testator,  is  a  valid  codicil,  though  it  does  not  refer  to  said 
will. 

In  the  case  of  Warwick  vs.  Warwick,  86  Va.,  596,  decided 
January  30,  1890,  it  was  held :  This  section  provides  that  "  no 
will  shall  be  valid  unless  it  be  in  writing  and  signed  by  the  tes- 
tator or  by  some  other  person  in  his  presence,  and  by  his  direc- 
tion, in  such  manner  as  to  make  it  manifest  that  the  name  is 
intended  to  be  a  signature." 

Section  2515. 

In  the  case  of  Kniciht  vs.  Yarhrough,  1  Va.  (Gilmer),  27,  de- 
cided June  13,  1820,  it  was  held :  W.  devised  property  to  his 
wife,  with  power  to  sell,  etc.,  or  to  dispose  of  among  children 
and  grandchildren,  as  she  pleased ;  the  wife  gave  part  to  a  son- 
in-law,  and  made  no  provision  for  some  of  the  children  and 
some  of  the  grandchildren.  This  is  an  imperfect  execution  of 
the  power,  and  void. 

When  an  object  of  the  bounty  has  received  anytliing  by  ap- 
pointment, he  can  claim  a  share  of  the  residue  only  on  bringing 
what  he  has  received  into  the  collatio  honorum ;  where  the  ap- 
pointment is  improperly  executed,  and  a  court  of  equity  is  called 
on  to  correct  it,  equality  is  the  rule. 

In  the  case  of  Knight  vs.  Yarhrough,  4  Rand.,  566,  decided 
December,  1826,  it  was  held :  Where  an  appointment  is  made 
in  pursuance  of  a  general  power  not  prescribing  the  mode  of 
appointment,  it  must  be  made  in  such  a  way  as  would  pass  the 
title  if  the  property  belonged  to  the  person  making  the  ap- 
pointment. Therefore,  where  an  appointment  is  made  of  slaves, 
under  such  a  general  power,  by  an  oral  declaration  that  the 
trustee  gives  them  to  the  appointee,  without  a  delivery  of  pos- 
session, the  appointment  is  void. 

In  the  case  of  Williamson  vs.  Beckham,  8  Leigh,  20,  decided 
February,  1837.  A  deed  of  settlement  made  before  marriage, 
and  conveying  real  and  personal  property  to  a  trustee  for  the 
separate  use  of  the  intended  wife,  provides  that  after  the  mar- 
riage she  shall  have  power,  by  written  instrument  under  her 
hand  and  seal,  attesteei  by  three  or  more  witnesses,  in  the  nature 
of  an  appointment  of  a  will  and  testament,  to  dispose  of  the  pro- 
perty as  freely  as  if  she  were  a  feme  sole.  Held :  This  is  a  power 
to  dispose  by  will  only,  and  not  by  deed. 

In  the  case  of  Lee  vs.  Bank  of  United  States,  9  Leigh,  200, 
decided  February,  1838.  By  post-nuptial  deed  of  settlement 
(reciting  that  husband  had  sold  his  wife's  estate,  and  she  had 
joined  him  in  conveyances  thereof,  under  promise  from  him  to 

Kettle   an   equivalent  on    her  therefor),  husband  conveys  real 
state  to  a  trustee.     First,  to  the  separate  use  for  life  of  the 
20 


306  Citations  to  the  Code  of  Virginia, 

wife,  unless  she  should  in  writing,  under  her  hand,  direct  trus- 
tee to  sell  and  convey  the  whole  or  any  part  of  trust  subject,  in 
which  case  he  should  hold  the  proceeds  of  sale,  subject  to  the 
separate  use  and  order  of  the  wife ;  second,  after  wife's  death,  to 
use  of  husband  for  life ;  and  third,  after  husband's  death,  to  and 
for  the  use  of  the  devisees  or  heirs  of  wife,  to  be  divided  and 
conveyed  to  them  in  such  portions  as  she  shall  by  will  direct, 
or  the  law  of  the  land  in  that  case  made  and  provided  shall  de- 
termine. By  mortgage,  afterwards  executed  by  husband  and 
wife  (the  wife  duly  joining,  but  the  trustee  in  the  settlement  no- 
wise joining  in  the  same),  the  real  estate  is  mortgaged  to  cred- 
itors of  husband  to  secure  a  just  debt  due  from  him.  Held :  That 
under  the  deed  of  settlement  the  wife  has  full  power  to  dispose 
of  the  whole  estate  in  the  trust  subject,  by  deed  in  her  lifetime, 
duly  executed  by  her  husband  and  her  according  to  the  statutes 
of  conveyances  as  well  as  by  will ;  and  therefore,  that  the  mort- 
gagees are  entitled  to  have  the  whole  estate  in  the  trust  subject 
sold  for  the  satisfaction  of  their  debt. 

The  case  of  Pollock  et  tix.  vs.  Glassell,  2  Grat.,  439,  here  cited, 
will  be  found  supra,  Section  2514. 

In  the  case  of  Thorndike  et  als.  vs.  Reynolds  et  als.,  22  Grat., 
21,  decided  March  27,  1872,  it  was  held :  A  husband,  who,  by 
his  will,  gives  property,  real  and  personal,  to  his  wife  abso- 
lutely, if  she  survives  him,  may,  by  his  will,  authorize  her  to 
make  a  will  in  his  lifetime  disposing  of  the  property ;  and  the 
wife,  having  made  a  will  in  the  lifetime  of  the  husband  disposing 
of  the  property,  and  afterwards  surviving  her  husband,  and 
dying  without  re-executing  or  revoking  her  -wall,  the  same  is 
valid  to  pass  the  property  to  her  devisees  and  legatees. 

Though  the  will  of  the  wife  does  not  say,  in  terms,  that  it  is 
made  in  pursuance  of  the  power  vested  in  her  by  her  husband's 
will,  yet,  as  his  will  was  shown  to  her  by  his  directions,  and  she 
had  no  property  of  her  own  at  the  time,  and  the  provisions  of 
his  win  have  obvious  reference  to  her  will,  it  will  be  held  that 
her  will  was  made  in  pursuance  of  the  power. 

The  clause  in  the  will  of  the  husband  giving  power  to  the 
wife  must  have  been  intended  to  take  effect  from  its  date  ;  and 
so  the  will  of  the  wife,  as  an  execution  of  the  power,  will  be  in- 
tended to  take  effect  from  its  date,  though  not  to  divest  and  pass 
the  title  in  the  lifetime  of  her  husband  and  herself.  The  will  of 
the  wife  was  not  revoked  by  the  death  of  the  husband,  leaving 
the  wife  surviving  him,  and  therefore  it  was  not  necessary  for 
her  to  re-execute  the  will  after  his  death. 

Though  the  wife  survives  the  husband,  and  thereupon  be- 
comes absolutely  entitled  to  the  property,  this  does  not  extin- 
guish the  power ;  but  the  will  of  the  wife,  executed  under  the 
power  in  the  lifetime  of  the  husband,  not  having  been  revoked 


I 

I 


Citations  to  the  Code  of  Virginia.  307 

by  her,  or  re-executed,  passes  the  property,  at  her  death,  to  her 
devisees  and  legatees. 

H.  dies,  leaving  a  will  and  three  codicils,  in  each  of  which  he 
gives  valuable  property  to  his  wife,  if  she  survives  him  ;  and  in 
some  of  these  bequests  he  authorizes  her  to  make  a  will  in  his 
lifetime  to  dispose  of  it.  By  the  third  codicil  he  gives  her  one- 
half  of  his  residuary  estate,  and  then  adds :  "  And  for  all  the 
purposes  contemplated  in  my  will  and  the  codicils  thereto,  I  au- 
thorize and  empower  my  wife  to  make  a  will  in  my  lifetime 
which  shall  be  good  and  effectual  in  law  and  equity."  This  is  a 
valid  power  to  the  wife  to  make  a  will  in  the  lifetime  of  the  hus- 
band, and  to  dispose  of  the  property  bequeathed  to  her ;  and 
looking  to  the  language  employed,  all  the  provisions  of  the  will, 
and  the  surrounding  circumstances,  the  intention  of  the  testator 
was  held  to  be  that  the  power  was  not  confined  to  the  bequest 
of  the  residue,  but  to  all  the  bequests  to  her  in  the  wills  and 
codicils. 

Section  2517. 

In  the  case  of  Wilcox  vs.  Jiootes  et  als.,  1  Wash.,  140,  decided 
at  the  fall  term  of  1792,  it  was  held :  A  subsequent  marriage 
and  birth  of  a  child  was  clearly  an  implied  revocation  of  a  will, 
and  ought  to  operate  as  such. 

In  the  case  of  Yerhy  vs.  Yerhy,  3  Call,  334  (2d  edition,  289), 
decided  April  20,  1803,  it  was  held :  If,  since  the  act  of  1792 
and  before  the  act  of  1794  concerning  wills,  a  man  having  chil- 
-dren  makes  a  will  and  devises  his  whole  estate  amongst  them, 
after  which  he  marries  a  second  wife,  by  whom  he  has  children, 
and  dies  without  altering  his  will,  the  second  marriage  and  birth 
of  children  is  a  revocation  of  the  will. 

An  implied  revocation  of  a  will  may  be  rebutted  by  circum- 
stances. Sed  Qitwre :  Can  the  court  of  probate  decide  whether 
the  will  was  revoked  or  not  ? 

In  the  case  of  Phaup  et  ah.  vs.  Wooldridge  et  als.,  14  Grat., 
332,  decided  May  11, 1858,  it  was  held  :  Under  the  statute  mar- 
riage is  a  revocation  of  a  will,  "  except  a  will  made  in  pursuance 
of  a  power  of  appointment,  when  the  estate  thereby  appointed 
would  not,  in  default  of  such  appointment,  pass  to  his  or  her 
(the  testator's)  heir,  personal  representative,  or  next  of  kin. 

Section  2518. 

In  the  case  of  Glasscock  vs.  Smither  <&  Hunt,  1  Call,  479  (2d 
edition,  414),  decided  October  31,  1798,  it  was  held :  A  will  of 
personal  estate,  legally  executed,  is  revoked  by  a  subsequent 
will  not  written  or  subscribed  by  the  testator,  but  which  was 
prepared  by  his  directions,  corrected  by  him,  and  which  he 
afterwards  declared  was  his  last  will. 

[The  facts  in  this  case  were  supported  by  the  testimony  of 


308  Citations  to  the  Code  of  Virginia. 

the  draftsman,  and  on  his  testimony  alone  the  will  was  admitted 
to  probate.] 

In  the  case  of  Bates  vs.  Bates'  Executor,  3  H.  &  M.,  503,  de- 
cided April,  1809.  A  testator  made  a  will  in  due  form  of  law,. 
to  which  he  afterwards  added  a  codicil,  he  then  made  a  second 
will  and  annexed  a  postscript  to  it,  by  which  he  revoked  all 
former  wills,  and  signed  the  postscript,  the  second  will  was  can- 
celled by  cutting  his  name  out  from  the  body  of  it,  but  leaving 
the  postscript  with  his  name  subjoined  to  it.  This  paj)er  was 
carefully  preserved  by  the  testator  as  also  the  first  will,  both  of 
which  were  found  after  his  death.  Held :  That  the  postscript  of 
the  second  will  was  a  substantial  revocation  of  the  first  will,  and 
that  the  cancelling  of  the  second  will  did  not  necessarily  cancel 
the  postscript  also,  so  as  to  set  up  the  first  as  the  will  of  the 
testator. 

In  the  case  of  Boyd  et  als.  vs.  {Cook  Executor  of  Vass),  3 
Leigh,  32,  decided  May,  1831,  it  was  held:  A  blind  testator 
orders  a  will  made  by  him  to  be  destroyed,  and  believes  it  is 
destroyed  accordingly,  but  it  is  not  destroyed,  and  no  act  to- 
wards destruction  done  ;  this  is  not  a  revocation  by  destruction 
or  cancellation  within  the  statute ;  at  least,  a  court  of  probata 
cannot  consider  this  as  amounting  to  a  revocation. 

In  the  case  of  Jlanshorough's  Executors  vs.  Hooe  and  Wife,  \% 
Leigh,  316,  decided  April,  1841.  Testator  by  his  will  devises 
two  thousand  acres  of  land,  and  bequeathes  twenty-eight  slaves 
and  sundry  bonds,  amount  not  mentioned,  and  one-fourth  of 
proceeds  of  sales  of  land  not  specifically  devised,  to  his  grand- 
daughter, Maria,  and  five  other  children  of  his  son,  John,  de- 
ceased, to  be  divided  among  them ;  and  that  one-fifth  part  of  the 
general  residuum  of  his  estate  shall  be  equally  di\aded  among 
the  same  persons ;  and  by  codicil  provides  that  Maria's  part 
shall  be  settled  to  her  separate  use  for  life,  remainder  to  her 
children  if  any,  and  if  none,  to  the  use  of  the  other  children  of 
her  father ;  after  which,  on  the  marriage  of  Maria,  testator  by 
marriage  contract  gives  her  four  hundred  acres,  not  parcel  of 
the  two  thousand  acres  of  land,  nine  slaves,  parcel  of  the  twenty- 
eight  slaves  named  in  the  will,  and  fifteen  hundred  dollars  in 
money,  all  to  be  settled  on  her  for  her  use  and  the  heirs  of  her 
body ;  but  in  the  case  of  her  death  without  issue,  or  in  the  event 
of  such  issue  as  she  may  have  not  arriving  to  twenty- one  years 
of  age,  or  marrying,  then  to  the  heirs  of  her  father.    Held : 

1.  All  the  legacies  of  personal  property  to  Maria  were  ad- 
deemed  or  satisfied  by  the  gift  to  her  in  the  marriage  contract. 

2  The  devise  of  land  to  her  is  also  addeemed  or  satisfied  by 
the  land  portion  given  her  by  the  contract. 

In  the  case  of  Barksdale  vs.  Barksdale,  12  Leigh,  535,  decided 
March,  1842.  Testator  in  1838  made  a  wiU,  all  written  with 
his  own  hand,  whereby  he  gave  three  thousand  dollars  to  his 


Citations  to  the  Code  of  Virginia.  309 

sister,  five  thousand  dollars  to  S.  S.,  and  the  residue  of  his 
€state  to  his  father;  in  1839  he  signed  another  instrument, 
whereby,  revoking  all  other  wills  before  made,  he  gave  T.  Y.  T. 
five  thousand  dollars  and  the  residue  of  his  estate  to  his  father, 
but  this  last  paper  was  not  written  by  him,  and  it  was  not  duly 
attested  according  to  the  statute  of  1834-'35.  Held :  The  clause 
of  revocation  in  the  instrument  of  1839  was  not  so  independent 
of  the  dispositions  contained  in  it,  as  to  operate  as  a  substan- 
tive declaration  in  writing  revoking  the  will  of  1838,  but  the 
revocation  was  made  with  a  view  to  the  new  dispositions,  and 
those  being  void  for  want  of  due  attestation,  the  revocation  is  a 
nullity. 

In  the  case  of  Hylton  vs.  Uylton^  1  Grat.,  161,  decided  Sep- 
tember, 1844,  it  was  held :  Evidence  that  a  subsequent  will  had 
been  made,  and  afterwards  stolen  from  the  testator,  without  any 
proof  of  its  contents,  and  proof  of  his  declarations  after  the  will 
was  stolen  that  he  would  die  intestate,  and  leave  his  estate  to 
be  distributed  according  to  the  statute,  is  not  sufficient  evidence 
of  the  revocation  of  a  former  will. 

In  the  case  of  Appling  vs.  Eades'  Administrators  et  als.,  1 
Grat.,  286,  decided  November,  1844,  it  was  held:  A  person 
having  made  a  will,  which  he  had  in  his  possession,  and  on  his 
death,  the  will  not  being  found,  in  the  absence  of  all  proof  that 
he,  or  any  other  person,  had  destroyed  it,  it  is  to  be  presumed 
to  have  been  destroyed  by  himself. 

In  the  case  of  3f alone' s  Administrator  et  als.  vs.  Hdbhs  et  als., 
1  Eob.,  346  (2d  edition,  366).  On  the  trial  of  an  issue  whether 
a  writing,  admitted  to  probate  as  a  will,  was  the  will  of  the  de- 
oedent  or  not,  it  appeared  that  the  decedent  had  made  a  codicil 
to  his  will,  and  that  the  codicil  was  afterwards  destroyed  by  his 
direction.  The  evidence  tended  to  show  that  the  will  was  writ- 
ten on  one  sheet  of  paper  and  the  codicil  on  another ;  that  the 
will  was  left  with  one  person  and  the  codicil  with  another;  and 
that  the  will  and  codicil  were  with  those  persons  respectively 
at  the  time  the  codicil  was  destroyed.  The  circuit  court  in- 
structed the  jury  that  if  they  believed  from  the  evidence  that 
the  decedent,  at  the  time  of  destroying  the  codicil,  intended 
thereby  to  destroy  or  revoke  the  will,  in  that  case  the  destruc- 
tion of  the  codicil  was  a  revocation  of  both  the  will  and  cod- 
icil.    Held :  This  instruction  was  erroneous. 

In  the  case  of  Colhcp  vs.  Smith,  89  Va.,  258,  decided  July  6, 
1892,  it  was  held :  By  his  will,  executed  in  1872,  testator  de- 
vised his  real  estate  equally  to  his  wife  and  his  three  children 
in  fee.  Having  been  annoyed  with  law-suits  by  his  son-in-law, 
he  executed  a  deed  in  1887,  conveying  his  real  estate  to  a  trus- 
tee in  fee,  for  the  sole  benefit  of  his  wife.  Held :  The  deed  was 
a  revocation  of  the  will. 


310  Citations  to  the  Code  op  Virginia. 

Section  2519. 

In  the  case  of  RudisilVs  Executor  vs.  Rodes  et  ux.,  29  Grat.^ 
147,  it  was  held,  September  27,  1877 :  Where  a  will  which  re- 
vokes a  former  will  is  destroyed  by  the  testator,  animo  revo- 
candi,  with  intention  that  the  former  will  shall  be  his  will,  but 
he  does  not  re-execute  it,  or  make  a  codicil  reviving  it,  though 
he  retains  it  uncancelled,  it  is  not  revived  by  the  destruction  of 
the  last  will. 

In  the  case  of  Corr  vs.  Porter  et  als.,  33  Grat.,  278,  decided 
July,  1880,  it  was  held :  No  particular  words  are  necessary  to 
be  used  in  a  codicil  to  effect  a  re-publication  of  the  will  to  which 
it  is  annexed.  It  is  only  necessary  that  it  shall  appear  that  the 
testator  referred  to  and  considered  the  paper  as  his  will  at  the 
time  he  executed  the  codicil ;  and  where  this  so  appears,  even 
though  the  codicil  refers  to  personal  property  only,  it  may 
operate  as  a  re-publication  as  to  reality,  even  so  as  to  pass  after 
acquired  lands.  The  effect  of  a  re-publication  is  to  bring  down 
the  will  to  the  date  of  the  codicil,  so  that  both  instruments  are 
to  be  considered  as  speaking  at  the  same  date  and  taking  effect 
at  the  same  time. 

Section  2520. 

In  the  case  of  Hughes  vs.  Hughes's  Executor,  2  Munf.,  209, 
decided  April  18,  1811,  it  was  held:  It  seems  that  a  deed  of 
trust  conveying  all  the  property  of  the  grantor  to  certain  per- 
sons and  their  heirs  "forever,"  with  warranty,  "nevertheless, 
upon  special  trust  that  they  shall  pay  the  profits  to  himself 
during  his  life,"  concluding  with  declaring  its  "true  intent  and 
meaning  to  be,  that,  at  his  death,  everything  therein  contained 
between  the  parties  should  become  null  and  void,"  is  a  convey- 
ance to  the  trustees  and  their  heirs  of  an  estate  for  the  life  of 
the  grantor  only,  and  not  a  revocation  of  a  previous  will. 

In  the  case  of  King's  Executors  vs.  Sheffey's  Administrator, 
8  Leigh,  614,  decided  August,  1837.  A  testator  gives  to  his 
wife  during  her  life  one-third  of  the  rents  and  profits  of  certain 
property,  consisting  of  houses  and  lots;  to  three  sons  each  a 
small  pecuniary  legacy,  after  payment  of  his  debts,  which  are 
to  be  paid  out  of  his  rents ;  and  he  directs  his  property  to  be 
sold  after  his  wife's  death,  and  devises  two-fifths  of  the  proceeds 
to  the  children  of  one  daughter,  two-fifths  to  another  daughter, 
and  the  remainding  fifth  to  a  third  daughter.  The  wife  dies 
before  the  testator,  and  after  her  death  the  testator  sells  the 
property  on  credit,  and  dies  the  same  year  that  the  sale  is  made. 
On  a  bill  to  recover  a  fifth  last  devised,  held :  The  ahenation  of 
the  property  revoked  the  devise  of  its  proceeds. 

Section  2521. 
In  the  case  of  Allen  vs.  Harrison  et  ah.,  3  Call,  289  (2d  edi- 
tion, 251),  decided  October  22,  1802,  it  was  held :  A  will  made 


Citations  to  the  Code  of  Virginia.  311 

since  the  1st  of  January,  1787  (when  the  act  of  1785  took  effect), 
may  pass  after  acquired  lands,  if  it  evidently  contemplates  such 
•property,  but  not  otherwise. 

In  the  case  of  Kendall  {Executor)  vs.  Kendall  et  als.^  5  Munf., 
272,  decided  November  30,  1816,  it  was  hejd  :  The  addition  of 
a  codicil  to  a  will  is  not  sufficient  to  operate  as  a  devise  of  lands 
purchased  by  the  testator  between  the  date  of  the  will  and  the 
date  of  the  codicil,  there  being  no  words  in  the  codicil  indi- 
cating such  to  be  the  intention  of  the  testator. 

In  the  case  of  Raines  vs.  Barker  et  als.,  13  Grat.,  128,  de- 
cided February  29,  1856,  it  was  held  :  Testator  made  his  will  in 
1842,  purchased  a  tract  of  land  in  1849,  and  died  in  1852.  His 
will  in  respect  to  this  land  is  to  be  construed  as  the  law  was 
prior  to  the  Code  of  1849.  Testator,  by  his  will,  made  in  1842, 
emancipates  his  slaves,  and  directs  his  executor  to  sell  the  land 
on  which  he  lives,  and  another  tract,  which  he  specifies,  and 
also  certain  stocks,  which  he  names  ;  all  his  household  and 
kitchen  furniture ;  all  his  stocks  of  all  kinds ;  plantation  tools, 
with  every  article  of  property  belonging  to  him,  except  his  wear- 
ing apparel ;  and  after  directing  that  when  there  is  money 
enough  collected  from  the  proceeds  of  the  sale,  the  negroes 
shall  be  sent  to  Africa  and  furnished  plentifully  with  everything 
necessary  for  their  comfort,  he  gives  five  hundred  dollars  to  a 
nephew ;  and  the  balance  of  his  estate,  after  paying  all  expenses, 
he  wished  to  go  to  furnish  the  expense  of  cari'ying  the  negroes 
to  Africa  and  furnishing  them  in  a  situation  to  live.  A  tract  of  land 
purchased  after  making  the  will  does  not  pass  under  the  devise. 

In  the  case  of  Gihson  vs.  Can^ell,  13  Grat.,  136,  decided  Feb- 
ruary 29,  1856,  it  was  held :  Testatrix,  by  her  will,  made  in  1837, 
when  she  possessed  no  real  estate,  gave  two  slaves  to  her  daugh- 
ter, M.,  and  six  to  her  son,  S.,  and  then  says:  "  All  the  balance 
of  my  property,  of  every  description,  real  or  personal,  I  give 
and  bequeath  to  my  son,  S."  But  if  her  daughter  had  a  child 
or  children,  three  of  the  slaves  given  to  S.  should  go  to  them. 
Land  afterwards  acquired  by  the  testatrix  does  not  pass  by  the 
devise  to  S. 

In  the  case  of  Thorndike  vs.  Reynolds,  22  Grat.,  21,  decided 
March  27,  1872,  it  was  held,  p.  32  :  The  clause  in  the  will  of 
the  husband  giving  the  power  to  the  wife  must  have  been  in- 
tended to  take  effect  from  its  date ;  and  so  the  will  of  the  wife, 
as  an  execution  of  the  power,  will  be  intended  to  take  effect 
from  its  date,  though  not  to  divest  and  pass  the  title  in  the  life- 
time of  her  husband  and  herself.  The  will  of  the  wife  was  not 
revoked  by  the  death  of  the  husband,  leaving  the  wife  surviving 
him,  and  therefore  it  is  not  necessary  for  her  to  re-execute  the 
will  after  his  death. 

Section  2522. 

In  the  case  of  Jones  vs.  Mason  {Executor  of  Jones),  5  Rand., 


312  Citations  to  the  Code  of  Virginia. 

577,  decided  August,  1827,  it  was  held :  Where  a  legacy  is  given 
to  a  child,  and  afterwards  an  advancement  is  made  to  that 
child,  such  advancement  shall  be  taken  as  a  satisfaction  of  a 
legacy,  but  this  presumption  may  be  rebutted  by  evidence.  The 
rule  that  the  thing  advanced  must  be  ejusdem  geiwris  with  the 
thing  bequeathed  may  be  controlled  by  evidence  showing  that 
it  was  the  testator's  intention  that  the  one  should  be  in  satis- 
faction of  the  other. 

In  the  case  of  Kelly,  etc.,  vs.  Kelly's  Executor,  6  Eand.,  176, 
decided  March,  1828,  it  was  held:  Where  a  father,  being  in- 
debted to  his  children,  afterwards  conveys  property  to  them 
which  is  more  than  equal  to  the  amount  of  the  debt,  this  con- 
veyance should  be  presumed  to  be  in  satisfaction  of  the  debt  if 
there  are  no  circumstances  to  prove  a  contrary  intention.  Al- 
though the  property  conveyed  and  the  debt  are  not  ejusdem 
generis,  the  one  may  be  a  satisfaction  of  the  other,  if  the  inten- 
tion of  the  testator  be  apparent  that  such  should  be  the  effect. 
In  the  case  of  Moore  vs.  Hilton  et  als.,  12  Leigh,  1,  decided 
February,  1841,  it  was  held :  An  advancement  to  a  child  made 
subsequent  to  a  will  is  to  be  taken  as  a  satisfaction  of  a  legacy 
to  that  child,  pro  toto  or  pro  tanto,  according  to  its  amount. 

In  the  case  of  Hanshrougli  s  Executors  vs.  Hooe  and  ^^ife,  12 
Leigh,  316,  decided  April,  1841.  Testator  by  his  will  devises 
two  thousand  acres  of  land,  and  bequeathes  twenty-eight  slaves 
and  sundry  bonds,  amount  not  mentioned,  and  one-fourth  of  pro- 
ceeds of  sales  of  land  not  specifically  devised,  to  his  grand- 
daughter Maria,  and  five  other  children  of  his  son  John,  de- 
ceased, to  be  divided  among  them ;  and  that  one-fifth  part  of 
the  general  residuum  of  his  estate  shall  be  equally  divided  among 
the  same  persons ;  and  by  codicil  provides  that  Maria's  part  shall 
be  settled  on  her  for  her  separate  use  for  life,  remainder  to 
her  children  if  any,  and,  if  none,  to  the  use  of  the  other  chil- 
dren of  her  father ;  after  which,  on  the  marriage  of  Maria,  testa- 
tor by  marriage  contract  gives  her  four  hundred  acres,  not  par- 
cel of  the  two  thousand  acres  of  land,  nine  slaves  parcel  of  the 
twenty-eight  slaves  named  in  the  will,  and  one  thousand  five 
hundred  dollars  in  money,  all  to  be  settled  on  her  for  her  use 
and  the  heirs  of  her  body ;  but  in  the  case  of  her  death  with- 
out issue,  or  in  event  of  such  issue  as  she  m'ay  have  not  arriv- 
ing to  twenty-one  years  of  age,  or  maiTying,  then  to  the  heirs 
of  her  father.     Held : 

1.  All  the  legacies  of  personal  property  to  Maria  were 
addeemed  or  satisfied  by  the  gift  to  her  in  the  marriage  contract. 

2.  The  devise  of  land  to  her  is  also  addeemed  or  satisfied  by 
the  land  portion  given  her  by  the  contract. 

In  the  case  of  Strother's  Administrator  et  als.  vs.  MitcheWs 
Executors  et  als.,  80  Va.,  149,  it  was  held:  Where  one  in  loco 
parentis  gives  a  legacy  to  a  person,  and  afterwards  advances  in 


i 


Citations  to  the  Code  of  Virginia.  313 

the  nature  of  a  portion  to  the  same  person,  such  advancement 
will  be  deemed  an  ademption  of  the  legacy.  But  where  the  gift 
is  given  before  the  making  of  the  will,  and  the  will  does  not 
charge  it  as  an  advancement,  the  court  cannot  so  charge  it  in 
settling  the  estate. 

In  the  case  of  Darn^ s  Executor  vs.  Lloyd,  82  Ya.,  859,  decided 
January  27,  1887,  it  was  held :  An  advancement  is  the  gift  by 
anticipation  of  the  whole  or  part  of  what  it  is  supposed  a  child 
will  be  entitled  to  on  the  death  of  the  giver  intestate. 

In  the  case  of  Davies  and  Wife  vs.  Hughes,  86  Va.,  909,  de- 
cided May  8,  1890,  it  was  held :  Testator  bequeathed  two-thirds 
of  his  land  to  his  son  and  executor,  and  remainder  to  the  chil- 
dren of  his  deceased  son.  Sale  to  be  at  executor's  discretion. 
He  kept  possession  and  all  the  profits.  The  children  lived  with 
and  served  him,  with  no  other  compensation  than  their  board. 
Held :  Executor  should  be  charged  with  rent  for  the  children's 
portion. 

Section  2523. 

In  the  case  of  Wood  et  ux.  vs.  Sampsoris  Executor  et  als.,  25 
•Grat.,  845,  decided  February  18,  1875,  it  was  held :  Testator 
gives  a  legacy  to  his  wife,  but  she  dies  before  him.  The  legacy 
will  not  sink  into  the  residuum  of  the  estate,  but  will  pass  to  her 
issue. 

Section  2524. 

In  the  case  of  Erazier,  etc.,  vs.  Frazier's  Executors,  etc.,  2  Leigh, 
€42,  decided  April,  1831,  it  was  held  :  The  rule  that  all  legacies 
which  fall  by  lapse  or  otherwise,  fall  into  the  residuum,  and  go 
to  the  residuary  legatees,  applies  to  specific  or  pecuniary  lega- 
cies, but  not  to  the  subject  of  the  residuary  legacy  itself. 

In  a  suit  in  chancery  the  defendants  are  in  default ;  yet  the 
record  or  proceedings  in  another  suit  inter  alios  is  not  compe- 
tent evidence  against  them. 

Section  2525. 
The  case  of  AyletCs  Executor  et  als.  vs.  Philip  Aylett,  1  Wash., 
300,  decided  at  the  fall  term  of  1794,  upheld  the  common  law 
doctrine  on  this  point  and  left  the  testator  intestate  as  to  his 
leasehold  lands ;  hence  the  statute. 

Section  2526. 
In  the  case  of  Machir  et  als.  vs.  Eunk  et  als.,  18  Southeastern 
Reporter,  197,  decided  November  9,  1893.  E.  M.  by  second 
clause  in  her  will  devises  her  property  equally  to  P.  M.,  Cathe- 
rine F.,  and  P.  M.  trustee  for  the  separate  use  of  Harriet  M.  for 
life,  remainder  to  her  children,  and,  in  default  of  issue  with 
power  of  appointment  to  said  P.  M.  and  Catherine  F.,  Harriet 
died,  leaving  said  P.  M.  and  C.  F.  surviving  her.  She  made  a 
will  disposing  of  her  whole  estate,  but  made  no  mention  either 


314  Citations  to  the  Code  of  Virginia. 

of  the  power  above  or  of  the  property  described  under  E.  M.'» 
will.  Her  will  contained  a  general  residuary  clause.  Held : 
That  under  Section  2526,  Code  1887,  providing  that  a  bequest 
shall  operate  as  an  execution  of  a  power,  there  was  a  sufficient 
appointment  under  the  power  conferred  in  E.  M.'s  will. 

By  third  clause  of  said  E.  M.'s  will  it  is  provided  that  in  the 
event  of  said  Catherine  F.'s  death  without  issue  her  share  goes 
to  P.  M.,  and  P.  M.  trustee  for  Harriet.  Held:  When  Cathe- 
rine died  without  issue,  that  her  part  was  equally  divided  be- 
tween P.  M.  and  the  appointee  under  Harriet's  will,  as  the 
latter  acquired  title  thereto  under  Section  2526,  Code  of  1887. 

Where  a  power  is  authorized  to  be  executed  on  a  contingent 
event  it  may,  unless  contrary  to  the  intention  of  the  party  creat- 
ing it,  be  executed  before  the  event,  though  it  cannot  take  effect 
until  the  contingency  happens. 

Section  2528. 

In  the  case  of  Terby  vs.  Yerby,  3  Call,  334  (2d  edition,  289), 
decided  April  20, 1803,  it  was  held  :  An  implied  revocation  of  a 
will  may  be  rebutted  by  circumstances.  An  expression  of  in- 
tention to  revoke  a  will  infuturo  does  not  revoke  the  will  unless 
the  alteration  be  made;  much  less  will  the  intention  to  alter 
a  will  be  presumed  to  revoke  it. 

In  the  case  of  Annisteadet  als.  vs.  Dangerfield  et  ux.,  3  Munf., 
20,  decided  November  12,  1812,  it  was  held :  A  devise  in  gene- 
ral terms  to  testator's  children  does  not  comprehend  a  post- 
humous child  so  as  to  prevent  it  from  claiming  under  the  act  of 
assembly,  as  pretermitted  by  the  will.  Qucere :  Does  the  testa- 
tor's knowledge  at  the  time  of  making  the  will  that  his  wife  is 
pregnant  make  any  difference  in  the  case? 

A  posthumous  child  unprovided  for  by  settlement,  and  preter- 
mitted by  the  last  will  of  its  father,  is  entitled  to  a  share  of  the 
real  estate,  notwithstanding  such  child  be  a  daughter,  and  it  ap- 
pear from  the  will  that  the  testator  intended  to  give  all  his  lands 
to  his  sons. 

Such  posthumous  child  is  entitled  to  such  share  of  the  real  and 
personal  estate  as  it  would  have  been  entitled  to  if  the  father 
had  died  intestate,  including  profits  of  lands,  hires  of  negroes, 
and  interest  and  profits  of  other  personal  estate. 

The  portion  of  such  posthumous  child  is  not  to  be  raised  by 
a  division  of  the  estate  into  equal  parts,  but  by  a  proportionate 
contribution  by  the  devisees  and  legatees,  and  those  claiming 
under  them. 

Purchasers  from  the  devisees  and  legatees  are  not  exempted 
from  contributing  to  make  up  the  portion  of  such  posthumous 
chdd  by  their  having  purchased  without  notice  of  such  a  claim. 

In  the  case  of  Savage  vs.  Mears,  2  Kob.,  570,  decided  Decern- 


Citations  to  the  Code  of  Virginia.  315 

ber,  1843.  A  testator  having  six  children,  four  the  issue  of  a 
deceased  wife,  and  two  the  issue  of  his  present  wife,  devises  to 
his  two  sons  each  a  tract  of  land  described  by  metes  and  bounds, 
directs  that  all  his  other  lands  shall  be  equally  divided  among 
his  four  daughters  and  their  heirs,  and  then  devises  and  be- 
queaths as  follows:  "My  will  is,  that  my  negroes  be  appor- 
tioned equally  among  my  six  children,  under  the  following  reg- 
ulations to  say :  that  the  one-third  of  them  which  shall  be  allotted 
to  my  wife  as  her  dower  shall  be  the  full  part  of  the  two  chil- 
dren I  had  by  her,  and  also  that  the  several  negroes  I  have 
from  time  to  time  furnished  any  of  my  children  be  their  right, 
but  that  they  shall  be  each  appraised  and  accounted  for  in  their 
part  of  the  devision  of  my  slaves. 

Lastly,  I  desire  that  all  the  residue  of  my  estate,  not  before 
specifically  given,  be  equally  divided  amongst  my  six  children. 

The  will  is  made  the  31st  of  December,  1792,  and  the  testator 
dies  in  1794,  prior  to  the  28th  of  October,  between  which 
periods,  to-wit:  in  November,  1793,  a  third  child  of  the  testator 
by  his  second  wife  is  born.     Held : 

1.  According  to  the  authority  of  Yerby  vs.  Yerhy,  3  Call, 
334,  the  birth  of  such  third  child  is  not  a  revocation  of  a  will. 

2.  As  the  will  was  published,  and  the  testator  died  before 
the  act  of  1794  providing  for  pretermitted  children,  the  case 
does  not  fall  within  the  operation  of  that  statute. 

3.  Upon  the  true  construction  of  the  will,  the  after-born  child 
has  no  claim  to  share  in  the  division  of  the  dower  slaves  "after 
the  death  of  the  widow. 

Section  2529. 

In  the  case  of  Croft  et  als.  vs.  Croft,  Executor,  etc.,  4  Grat., 
103,  decided  July,  1847,  it  was  held :  By  the  Act  1,  Eev.  Code, 
Chapter  104,  Section  11,  p.  377,  a  devise  or  bequest,  whether  of 
real  or  of  personal  estate,  to  an  attesting  witness  to  a  will,  with- 
out whose  testimony  the  will  may  not  be  otherwise  proved,  is 
void. 

In  the  case  of  Martz's  Executor  vs.  Martz's  Heirs,  25  Grat., 
361,  decided  October  2,  1874,  it  was  held:  Upon  the  proceed- 
ing for  the  probate  of  a  will,  J.,  who  is  the  nominated  executor 
and  propounder  of  the  paper,  and  also  a  devisee  and  legatee 
under  it,  is  a  competent  witness  to  sustain  the  probate. 

A  will  is  not  a  contract,  and  an  executor  or  legatee  is  not  a 
party  to  it  in  the  sense  of  the  statute. 

One  party  to  a  suit  is  incompetent  as  a  witness  on  account  of 
the  disqualification  of  the  other  party  only  in  a  case  where  he 
was  a  party  to  the  transaction  which  is  the  subject  of  the  suit 
or  proceeding,  and  the  other  party  to  it  is  dead,  insane,  or  in- 
competent from  some  legal  cause.     Where  the  objection  is  to  the 


316  Citations  to  the  Code  of  Virginia. 

competency  of  the  witness,  and  the  objection  is  sustained,  it  is 
not  necessary  to  state  in  the  exception  what  the  party  offering 
him  expects  to  prove  by  him. 

If  an  exception  to  the  ruling  of  the  court  excluding  a  Avitness 
is  taken  at  the  time,  the  bill  of  exception  may  be  prepared  and 
signed  and  sealed  after  the  verdict  and  judgment ;  and  if  the 
counsel  of  the  parties  do  not  agree  as  to  the  fact  whether  the 
exception  was  taken  at  the  time,  the  court,  not  remembering, 
may  certify  the  facts ;  and,  the  entry  of  the  clerk  in  the  memo- 
randum stating  that  the  exception  was  taken  on  the  trial,  the 
court  was  right  in  certifying  the  facts,  and  the  appellate  court 
may  consider  the  question  raised  by  the  bill  of  exceptions. 

Section  2531. 

In  the  case  of  Coalter's  Executor  vs.  Bryan  et  ux.  et  als.,  1 
Grat.,  18,  decided  May,  1844,  it  was  held :  An  executor  claim- 
ing no  interest  as  devisee  or  legatee  under  the  will,  and  not 
having  acted  in  such  a  way  as  to  subject  him  to  a  decree  for 
costs,  is  a  competent  witness  between  parties  claiming  the  estate 
he  represents ;  though  he  is  a  party  defendant  in  the  suit ;  though 
he  has  settled  his  accounts,  showing  large  balances  in  his  hands, 
and  though  he  is  entitled  to  commissions  upon  his  receipts  and 
disbursements.  Upon  directing  the  issue  devisavit  vel  non,  the 
court  should,  if  moved  so  to  do  by  the  party  desiring  his  testi- 
mony, direct  the  executor,  if  a  competent  witness,  to  be  received 
and  examined  before  the  jury  upon  the  trial  of  the  issue. 

Section  2532. 

In  the  case  of  Raines  vs.  BarJc&r,  13  Grat.,  128,  decided  Feb- 
ruary'29,  1856,  it  was  held:  Testator  made  his  will  in  1842, 
purchased  a  tract  of  land  in  1849,  and  died  in  1852.  His  will, 
in  respect  to  this  land,  is  to  be  construed  as  the  law  was  prioi: 
to  the  Code  of  1849. 

A  testator,  by  his  will,  made  in  1842,  emancipates  his  slaves, 
and  directs  his  executors  to  sell  the  land  on  which  he  lives,  and 
another  tract  which  he  specifies,  and  also  certain  stocks  which 
he  names,  all  his  household  and  kitchen  furaiture,  all  his  stocks 
of  all  kinds,  plantation  tools,  with  every  article  of  property  be- 
longing to  him,  except  his  wearing  apparel ;  and  after  directing 
that  when  there  is  money  enough  collected  from  the  proceeds 
of  the  sale,  the  negroes  shall  be  sent  to  Africa  and  furnished 
plentifully  with  everything  necessary  for  their  comfort,  he  gives 
five  hundred  dollars  to  a  nephew;  and  the  balance  of  his  estate, 
after  paying  all  expenses,  he  wished  to  go  to  furnish  the  ex- 
pense of  carrying  the  negroes  away  and  furnishing  them  in  a 
situation  to  live.  A  tract  of  land  purchased  after  making  the 
win  does  not  pass  under  the  devise. 


Citations  to  the  Code  of  Vieginia.  317 

Section  2533. 

In  the  case  of  Smith  vs.  Jones,  6  Eand.,  36,  decided  October^ 
1827,  it  was  held :  A  court  of  probate  occupies  the  place  of  a 
jury  as  to  facts,  and  ought  to  find  all  proper  inferences  from 
facts  proved. 

In  the  case  of  Commomoealth  vs.  Hudgin,  2  Leigh,  248,  de- 
cided June,  1830.  A  resident  of  Kentucky  dies  intestate  there^ 
having  no  estate  in  Virginia,  but  a  claim  on  this  Commonwealth 
for  money.  Held:  The  Circuit  Court  of  Henrico  county, 
wherein  is  the  seat  of  government,  has  jurisdiction  to  grant 
administration  of  such  decedent's  estate. 

In  the  case  of  Ex-parte  Barker,  2  Leigh,  719,  decided  June, 
1830,  it  was  held :  Letters  of  administration  granted  by  a  court 
having  no  jurisdiction  to  grant  them  are  merely  void ;  and  the 
court  having  competent  jurisdiction  to  grant  the  administration 
may  proceed  to  grant  it,  though  the  letters  of  administration 
before  improperly  granted  have  not  been  revoked. 

In  the  case  of  Fisher  vs.  Bassett,  9  Leigh,  119,  decided  De- 
cember, 1837.  A  county  or  corporation  court  grants  adminis- 
tration of  the  estate  of  a  foreigner,  who  died  abroad,  and  who 
had  no  residence  in  the  county  or  corporation  at  the  time  of  his 
death,  and  had  no  estate  of  any  kind  there,  so  that  in  truth  the 
state  of  facts  is  not  such  as  to  give  the  court  jurisdiction  to  grant 
administration  in  the  particular  case  according  to  the  provisions 
of  the  statute ;  yet  held :  That  such  a  grant  of  administration 
is  not  a  void  but  only  a  voidable  act,  and  therefore  rightful  acts  of, 
and  fair  dealings  with,  the  administrator,  consummated  before  his 
administration  is  revoked  or  superseded,  cannot  be  impeached. 

Qucere :  Whether  if  a  county  or  corporation  court  grant  ad- 
ministration of  a  decedent's  estate  in  a  case  when  the  true  state 
of  facts  is  not  such  as  to  give  such  court  jurisdiction  to  grant 
administration,  and  yet  such  grant  is  only  voidable,  not  void, 
the  General  Court  can  make  a  valid  grant  of  administration 
until  the  former  irregular  grant  by  the  county  or  corporation 
court  shall  have  been  duly  revoked  or  superseded? 

In  the  case  of  Burnley  vs.  Duke,  2  Rob.,  102,  decided  May, 
1843.  Pending  a  suit  in  chancery  by  legatees  against  an  ex- 
ecutor to  recover  their  legacies,  the  executor  died.  Process 
was  awarded  to  revive  the  suit  against  his  administrator ; 
and  the  administrator  dying,  process  was  issued  and  an  order 
entered  to  revive  the  suit  against  his  representative.  But 
afterwards  that  process  was  quashed  and  that  order  set 
aside  as  early  as  1811,  and  then,  by  consent  of  the  parties, 
the  suit  was  rcsdved  against  the  administrator  de  honis  non 
of  the  executor,  and  by  like  consent  it  was  entered  that  the 
cause  was  not  to  abate  by  the  death  of  any  of  the  parties.  A 
personal  decree  was  obtained  in  1818  by  the  legatees  against 


318  Citations  to  the  Code  of  Virginia. 

the  administrator  de  bonis  non,  from  which  he  appealed.  Pending 
the  appeal  he  died.  Whereupon,  though  the  two  former  grants 
of  administration  on  the  executor's  estate  had  been  by  the  court 
of  Orancre,  the  court  of  Hanover  now  granted  administration 
on  the  same  estate,  not  in  the  form  of  a  grant  de  bonis  non^  but 
of  an  original  grant.  At  the  instance  of  the  legatees,  a  scire 
Jacias  issued  to  revive  the  appeal  against  this  new  administratoi- 
(calling  him  administrator  de  bonis  non),  which  was  duly  executed, 
and  in  1822  the  decree  affirmed.  In  the  caption  of  the  decree 
of  affirmance,  the  name  of  the  administrator  de  bonis  non,  against 
whom  the  decree  of  the  court  below  was  entered,  did  not  appear 
as  a  party,  but  the  new  administrator  was  mentioned  therein  as 
appellant.  In  1823  a  bill  of  revivor  and  supplement  was  filed 
in  the  court  below,  convening  before  the  court,  and  seeking  to 
charge  the  representatives  of  the  first  administrator  and  of  the 
first  administrator  de  bonis  non.  It  turned  out  that  after  the 
scire  facias  to  revive  the  appeal  had  been  executed,  and  before 
the  decree  of  affirmance,  the  new  administrator  had,  in  the  char- 
acter of  administrator  de  bonis  non,  brought  suits  and  obtained 
decrees  for  the  assets  of  the  executor's  estate  in  the  hands  of 
the  representatives  of  the  first  administrator,  and  of  the  first  ad- 
ministrator de  bonis  non,  against  those  representatives  respect- 
ively, without  opposition  on  their  part ;  and  the  decrees  so  ob- 
tained were  soon  after  satisfied.  Those  decrees  were  in  1820 
and  1821,  about  six  years  before  the  decision  in  ^Ve'^nick''s  Ad- 
ministrator y^.  McMurdo,  5  Rand.,  51.  Held:  1.  That  the  grants 
of  administration  by  the  court  of  Orange  to  the  first  adminis- 
trator and  to  the  first  administrator  de  bonis  non,  never  having 
been  reversed  or  revoked,  must  be  considered  valid  grants,  which 
conferred  upon  those  administrators  respectively  all  the  power 
of  rightful  administrators. 

2.  That  when  the  grant  to  the  first  administrator  de  bonis  non 
expired  by  his  death,  and  there  was  no  conflicting  right  in  ex- 
istence, it  was  competent  for  the  court  which  might  in  the  first  in- 
stance rightfully  have  exercised  Jurisdiction,  to  act  on  the  sub- 
ject ;  and  Hanover  court  having  acted  when  there  was  no  such 
conflicting  right,  and  its  grant  not  having  been  reversed  or  re- 
voked, that  grant  is  good  and  valid,  and  the  sureties  in  the  ad- 
minstration  bond  taken  in  Hanover  court  are  liable  thereupon. 

3.  That  as  the  legatees  after  the  death  of  the  first  adminis- 
trator dismissed  his  representative  from  the  suit,  it  was  lawful 
for  that  representative  to  pay  over  to  the  administrator  against 
whom  the  legatees  were  proceeding,  tlie  unapplied  assets  of  the 
executor's  estate ;  and  such  payment  made  in  good  faith  and 
under  the  sanction  of  a  decree  of  a  court  of  competent  jurisdic- 
tion, is  a  complete  protection  to  such  representative  against  the 
legatees  as  to  the  money  so  paid. 


Citations  to  the  Code  of  Vikginia.  319 

4.  That  the  decree  in  favor  of  the  legatees  against  the  admin- 
istrator de  honis  non  was  personal,  only  in  respect  to  the  assets 
in  his  hands,  and  (it  being  nowhere  alledged  that  he  had  con- 
verted or  wasted  the  same)  such  unapplied  assets  coming  to  the 
hands  of  his  representatives  must  in  equity  be  regarded  as  un- 
administered  assets  of  the  executor's  estate  ;  and  the  representa- 
tive of  the  administrator  de  honis  non  having  in  good  faith  and 
in  pursuance  of  the  decree  of  a  court  of  competent  jurisdiction, 
paid  over  the  said  assets  to  the  administrator  against  whom  the 
legatees  revived  the  appeal,  such  payment  protects  the  estate  of 
the  administrator  de  ho7iis  non  from  the  claims  of  the  legatees. 

5.  That  for  the  assets  so  paid  over  by  the  representatives  of 
the  first  administrator  and  of  the  administrator  de  honis  non,  the 
administrator  to  whom  such  payment  was  made  and  the  sureties 
in  his  official  bond  are  liable. 

6.  That  the  dismission  of  the  bill  as  to  the  representatives  of 
the  first  administrator  and  of  the  administrator  de  honis  non, 
should  be  without  costs. 

In  the  case  of  Ilutcheson  vs.  Priddy,  12  Grat.,  85,  decided 
January,  1855,  it  was  held:  If  the  county  court  commits  an 
estate  to  the  sheriff  for  administration  before  the  expiration  of 
three  months  from  the  death  of  the  testator  or  intestate,  the  act 
is  not  void  but  voidable.  In  such  a  case  the  county  court 
having  general  jurisdiction  to  grant  administration,  the  act  of 
the  court  in  committing  the  estate  to  the  sheriff  cannot  be  ques- 
tioned in  any  collateral  proceeding. 

In  the  case  of  Ballow  vs.  Hudson,  13  Grat.,  672,  decided  Feb- 
ruary 24,  1857,  it  was  held :  A  paper  is  propounded  for  probate 
to  the  County  Court  of  C.  as  the  will  of  B.,  and  is  rejected  on 
the  ground  that  B.  was  incompetent  to  make  a  will.  After- 
wards the  paper  is  propounded  to  the  Circuit  Court  of  C,  and 
that  court,  with  knowledge  that  it  had  been  rejected  in  the 
County  Court,  admits  it  to  probate.  The  sentence  of  the  County 
Court  is  conclusive  against  the  will,  and  the  sentence  of  the  Cir- 
cuit Court  is  a  nullity. 

In  the  case  of  Andrews  vs.  Avory  et  als.,  14  Grat.,  229,  decided 
February  16,  1858,  it  was  held :  Administration  granted  where 
the  deceased  lived  and  died  out  of  the  State,  and  left  no  estate 
within,  is  not  void. 

An  administrator  appointed  in  Virginia,  whose  intestate  lived 
and  died  in  North  Carolina,  and  left  no  estate  in  Virginia,  goes 
to  North  Carolina,  and  without  qualifying  there,  takes  posses- 
sion of  the  assets  and  brings  them  to  Virginia.  His  sureties  in 
Virginia  are  liable  for  his  faithful  administration  of  those  assets. 

In  the  case  of  Conolly  vs.  Conolly  et  als.,  32  Grat.,  657,  de- 
cided January,  1880,  it  was  held,  pages  664-'65  :  The  court  in 
which  a  bill  is  filed  under  the  statute  to  impeach  or  estabUsh  a 


320  Citations  to  the  Code  of  Virginia. 

will  is  not  a  mere  court  of  probate,  but  something  more.  It  is 
a  court,  of  equity,  and  though  its  powers  over  the  subject  con- 
fided to  it  are  limited,  it  may,  on  a  proper  bill,  review  and  cor- 
rect errors  in  its  proceedings  after  final  decree  in  the  cause. 

The  present  state  of  the  law  of  probate  in  Virginia  is,  that  a 
sentence  pronounced  by  a  court  having  jurisdiction,  whether  it 
be  a  sentence  admitting  a  paper  to  probate  or  excluding  it  from 
probate,  as  long  as  it  remains  in  force  binds  conclusively,  not 
only  the  immediate  parties  to  the  proceeding  in  which  the  sen- 
tence is  had,  but  all  other  persons  and  all  other  courts ;  and  the 
principle  applies  as  well  to  a  sentence  represented  by  a  verdict 
of  a  jury  and  decree  thereon  in  the  proceeding  by  bill  under  the 
statute,  as  to  a  sentence  pronounced  in  any  other  authorized 
probate  proceeding. 

In  the  case  of  Norvell  et  als.  vs.  Lessueur  et  als.,  33  Grat.,  222, 
decided  April,  1880,  it  was  held :  It  is  a  settled  rule  of  law  of 
the  State  of  Virginia,  that  the  admission  of  a  will  to  probate 
generally  is  conclusive  of  its  validity,  botli  as  a  will  of  realty 
and  personalty,  which  cannot  be  drawn  in  question,  except  on 
an  issue  devistavit  vel  non  within  the  time  and  mode  prescribed 
by  the  statute. 

A  case  in  which  a  will,  good  as  a  will  of  personalty,  but  not 
good  as  a  rule  of  realty,  though  admitted  to  probate  generally. 
Held :  Upon  the  action  of  the  same  court,  between  the  same  par- 
ties, on  the  same  day,  treating  the  probate  as  only  of  a  will  of 
personalty,  and  this  acted  on  for  forty  years,  that  the  order  ad- 
mitting the  order  to  probate  will  be  considered  as  only  a  pro- 
bate of  a  will  of  personalty. 

Section  2534. 

In  the  case  of  ^Vynris  Executor  vs.  Wynn's  Adtainistrators ; 
Wynn's  Administrators  vs.  Wynn's  Executor,  8  Leigh,  264,  de- 
cided April,  1837,  it  was  held :  When  a  court  of  probate  under 
the  24th  Section  of  the  statute  concerning  wills  appoints  a  per- 
son to  collect  and  preserve  the  estate  of  a  decedent  until  admin- 
istration be  granted,  such  appointee  cannot  properly  be  sued  on 
a  bond  of  the  decedent.  If  he  be  sued  and  judgment  be  ren- 
dered against  him,  a  scire  facias  upon  the  judgment  will  not  lie 
after  administration  is  granted  against  the  administrator,  nor 
will  the  judgment  be  any  bar  to  a  new  action  against  the  ad- 
ministrator upon  his  decedent's  bond. 

The  reference  to  9  Leigh,  242,  is  an  error,  nothing  in  point 
appearing  there. 

In  the  case  of  Helsley  et  als.  vs.  Craig's  Administrators  et  als., 
33  Grat.,  716,  decided  September,  1880.  H.  is  appointed  cura- 
tor of  the  estate  pending  a  contest  over  C.'s  will,  and  whilst 
curator  collects  an  ante-war  debt  well  secured  in  Confederate 


I 


Citations  to  the  Code  of  Virginia.  321 

money.  C.'s  will  having  been  established,  H.  qualifies  as  ex- 
ecutor, but  is  afterwards  removed,  and  the  administrator  de  hoiiis 
non,  with  the  will  annexed,  files  a  bill  against  H.,  as  curator, 
and  his  sureties,  seeking  to  subject  them  to  the  payment  of  said 
debt,  and  the  defendant  demurs  to  the  bill.  Held :  The  admin- 
istrator de  bonis  tion,  with  the  will  annexed,  may  maintain  the 
suit  against  the  curator  and  his  sureties  under  the  statute.  Code 
of  1873,  Chapter  118,  Section  24. 

Section  2536. 

In  the  case  of  liice  vs.  Jones,  4  Call,  89,  decided  November, 
1786,  it  was  held:  A  will  devising  lands  in  Virginia  may  be 
proved  in  this  State,  although  it  may  have  been  declared  void  in 
any  other  of  the  United  States. 

In  the  case  of  Burnle]fs  Administrator  vs.  Duke  et  als.,  1 
Rand.,  108,  decided  March,  1822,  it  was  held:  Where  a  testator 
leaves  two  wills,  one  in  Virginia  and  the  other  in  England,  the 
EngHsh  will  being  the  last  in  date,  and  his  executor  takes  out 
letters  of  administration  on  the  posterior  will  in  England,  this 
does  not  ipso  facto  repeal  letters  of  administration  which  have 
been  granted  in  Virginia  on  the  first  will ;  the  English  executor 
must  first  quaUfy  by  giving  bond  and  security  as  the  law 
directs. 

In  the  case  of  JEx  Parte  Povall,  3  Leigh,  816,  decided  by  the 
General  Court,  July,  1831,  it  was  held:  When  an  authenticated 
copy  of  a  will  proved  in  another  or  foreign  State  is  offered  for 
probate  here,  if  the  probate  show  that  the  will  has  been  so  proved 
there,  as  that  if  proved  in  like  manner  here  it  could  only  be 
admitted  to  probate  here  as  a  will  of  personalty,  it  shall  be  so 
admitted;  but  if  the  proof  in  the  foreign  court  of  probate  be 
such  as  if  taken  here  would  suffice  to  establish  it  as  a  will  of 
lands,  it  shall  be  admitted  to  probate  here  also  as  a  will  of 
lands. 

Section  2537. 

In  the  case  of  Nalles  Representatives,  etc.  vs.  Fenuoick,  (Sur- 
viving Partner,  etc.),  4  Rand.,  585,  decided  December,  1826,  it 
was  held :  It  seems  that  a  will  of  lands  where  two  of  the  three  at- 
testing witnesses  reside  out  of  the  State,  and  cannot  be  procured 
by  any  legal  means,  may  be  proved  by  the  remaining  witness, 
he  proving  the  attestation  of  the  absent  witnesses.  The  mode 
pointing  out  in  the  act  "  prescribing  the  method  of  proving  cer- 
tain wills,"  gives  an  additional  mode  of  proceeding,  and  does 
not  deprive  a  party  of  any  of  which  he  might  have  pursued  be- 
fore. 

In  the  case  of  Pollard's  Heirs  vs.  Lively,  2  Grat.,  216,  decided 
July,  1845,  it  was  held  :  This  court  will  presume  that  a  deposition 
has  been  taken  upon  a  regular  commission  and  notice,  where  no 
21 


322  Citations  to  the  Code  of  Virginia. 

objection  has  been  raised  to  it  on  that  ground  in  the  court 

below. 

A  person  taking  a  deposition  under  a  regular  commission  and 
notice,  certifies  that  the  deposition  was  taken  before  him,  and 
signs  his  name  to  the  certificate,  with  the  addition  of  the  letters 
J.  P.     Held :  It  sufficiently  appears  he  is  a  justice  of  the  peace. 

A  witness  giving  his  deposition  de  hene  esse,  states  in  it  that 
he  is  unable,  from  his  age  and  health,  to  attend  the  court.  This 
is  sufficient  to  authorize  his  deposition  to  be  read  upon  the  trial 
of  the  cause  in  which  it  is  taken. 

In  the  case  of  NuckoVs  Administrator  vs.  Jones,  8  Grat.,  267, 
decided  October,  1851.  In  a  case  of  probate,  the  deposition  of 
an  aged  witness  taken  de  hene  esse  is  allowed  to  be  read,  upon 
proof  either  by  witnesses  or  by  his  own  affidavit  of  his  inability 
to  attend  the  court. 

In  a  case  of  probate  a  witness  unable  to  attend  the  court,  is 
examined  as,  to  the  handwriting  of  a  testamentary  paper  which 
had  been  shown  to  him  by  the  propounder  of  the  will,  but 
which  was  not  before  him  at  the  time  he  gave  his  deposition. 
Held :  That  the  testimony  is  admissible,  its  weight  depending 
upon  the  certainty  of  the  proof  that  the  paper  propounded  for 
probate  is  the  paper  that  was  shown  to  the  witnesses. 

In  the  case  of  Steptoe  vs.  Ready  19  Grat.,  1,  decided  October 
27,  1868,  it  was  held :  A  commission  to  take  deposition,  being 
in  all  other  respects  correct,  the  omission,  from  inadvertence  of 
the  clerk  issuing  it,  to  sign  his  name  to  it  at  the  bottom,  will  not 
vitiate  it. 

Though  the  commissioner  taking  a  deposition  does  not  give 
the  names  of  the  parties  in  his  certificate,  or  state  that  it  was  taken 
in  pursuance  of  a  commission,  yet,  as  the  names  are  given  in  the 
caption  to  the  certificate,  and  the  commission  is  returned  with 
the  deposition  and  attached  to  it,  the  certificate  is  sufficient. 

The  certificate  of  a  commissioner  who  takes  a  deposition  does 
not  state  that  it  was  taken  pursuant  to  notice,  but  though  the 
deposition  is  excepted  to  on  the  ground  that  there  was  no  com- 
mission, and  that  the  certificate  does  not  state  the  parties  to  the 
suit  in  which  it  is  taken,  no  objection  is  taken  to  it  in  the  court 
below  for  want  of  notice.  Although  there  is  no  notice,  or  evi- 
dence of  notice  in  the  record,  the  objection  for  want  of  notice 
cannot  be  taken  in  the  appellate  court. 

Section  2542. 

The  reference  to  10  Grat.,  259,  is  an  error. 

In  the  case  of  Tucker  et  als.  vs.  Sandidge,  {Curator),  82  Va., 
532,  decided  November  11,  1886.  In  a  proceeding  at  law  to 
contest  paper-writing  propounded  by  the  executor  S.  for  pro- 
bate, a  jury  was  empaneled  to  ascertain  whether  the  paper- 


Citations  to  the  Code  of  Yieginia.  323 

"writing  was  the  last  will  and  testament  of  T.  The  verdict  was 
that  it  was  not.  On  motion  of  the  propounder,  the  verdict 
was  set  aside,  and  a  new  trial  awarded.  Contestants  appealed. 
Held :  The  appeal  was  improvidently  awarded,  and  must  be  dis- 
missed, and  the  case  remanded  for  trial  and  final  order.  This 
is  the  case  cited  from  11  Va.  Law  Journal,  107. 

Section  2544. 

In  the  case  of  Ford  vs.  Gardin&r,  1  H.  &  M.,  71,  decided 
October  30,  1806,  it  was  held :  Upon  an  issue  from  a  court  of 
chancery  to  try  the  validity  of  a  will,  the  court  ought  to  give 
directions  respecting  the  reading  of  the  papers  filed  in  the  cause, 
otherwise  the  omission  to  read  any  of  them  on  the  trial  of  such 
issue  will  not  be  ground  for  reversing  the  proceedings  if  the 
•court  of  chancery  refuses  to  grant  a  new  trial  when  the  verdict 
in  such  case  is  certified  to  the  court  sitting  in  chancery,  and  a 
new  trial  refused ;  the  allegations  relative  to  what  passed  at  the 
trial,  stated  in  the  bill  of  exceptions  to  the  opinion  of  the  court 
in  refusing  the  new  trial,  if  no  proof  of  the  truth  of  these  alle- 
gations appear  on  the  record,  are  not  to  be  taken  as  admitted  to 
be  true  by  the  courts  signing  and  sealing. 

After  the  probate  of  a  will,  any  person  interested  who  had  not 
appeared  and  contested  such  probate,  may,  within  seven  years 
(now  two  years),  file  a  bill  in  equity  to  contest  its  validity,  and 
any  such  person,  even  though  he  had  appeared  and  contested 
the  probate,  may  file  a  bill  as  aforesaid  on  the  ground  of  fraud, 
to  the  existence  of  which  he  was  a  stranger  at  the  time  of  the 
probate. 

A  county  court  sitting  in  chancery  has  the  right  to  direct  an 
issue  to  be  tried  on  the  common  law  side  of  the  same  court. 

An  issue  to  try  the  vahdity  of  a  will  has  the  same  effect 
as  an  issue  to  try  whether  the  writing  in  question  is  the  wUl 
or  not. 

In  the  case  of  Yauglian  vs.  Doe  on  demise  of  Green,  1  Leigh, 
287,  decided  June  18,  1829,  it  was  held :  Will  disposing  of  real 
and  personal  estate,  but  not  duly  executed  as  to  the  real,  was 
admitted  to  probate  by  county  court  in  general  terms  1785,  and 
never  contested.  Held :  This  was  full  probate,  the  heir  could 
only  have  contested  the  will  by  bill  in  chancery,  within 
seven  years,  and  he,  instead  of  contesting  it,  having  taken  as 
devisee  under  it,  it  must  now  be  regarded  as  a  complete  will  of 
lands. 

In  the  case  of  Street  vs.  Street,  11  Leigh,  498  (2d.  edition,  521), 
decided  January,  1841.  A  will  devising  or  charging  lands  is 
admitted  to  full  probate,  without  proof  appearing  in  the  sentence 
of  probate  that  it  was  duly  attested  by  witnesses,  or  that  it  was 
wholly  wTitten  by  the  testator.     Held:  That  according  to  our 


324  Citations  to  the  Code  of  Virginia. 

laws  and  course  of  judicial  decisions,  the  will  cannot  be  contro- 
verted as  a  will  of  lands  after  the  lapse  of  seven  years  from 
such  full  probate.  But  if  the  sentence  of  probate  distinctly 
shows  that  the  will  was  not  duly  executed  to  pass  real  estate. 
Qiccere:  Whether  the  sentence  of  probate,  though  general, 
ought  not  in  such  case  to  be  understood  in  the  restricted 
sense  of  declaring  the  instrument  a  good  will  of  personalty 
only? 

In  the  case  of  Malone's  Administrator  et  als.  vs.  Hohhs  et  als., 
1  Bob.,  346,  (2d  edition,  366),  decided  November,  1842.  Where 
a  will  has  been  admitted  to  probate,  and  a  person  interested 
appears  within  seven  years  afterwards  and  files  a  bill  in  chancery 
Tinder  the  Act  1,  Rev.  Code  of  1819,  Chapter  104,  Section  13,  it 
is  sufficient  in  such  bill  to  aver  in  general'  terms  that  the  writ- 
ing of  which  probate  has  been  received  is  not  the  will  of  dece- 
dent. 

An  answer  to  a  bill  contesting  the  validity  of  a  will  states  that 
some  of  the  plaintiffs  had  accepted  legacies  and  devises  under 
the  will;  and  the  fact  appears  to  be  so  by  exhibits  filed  with 
the  answer.  After  verdict  and  decree  against  the  will,  the 
objection  is  taken  in  an  appellate  court,  that  those  parties  had 
precluded  themselves  from  disputing  the  validity  of  the  will, 
and  that  as  they  are  improperly  joined  with  the  other  plaintiffs, 
the  suit  cannot  be  sustained.  Held :  The  objection  will  not 
avail. 

On  the  trial  of  an  issue  whether  a  writing,  admitted  to  pro- 
bate as  a  will,  be  the  will  of  the  decedent  or  not,  the  evidence 
against  the  will  consists  of  statements  by  witnesses  of  what  a 
legatee  told  them  had  passed  on  one  occasion  when  he  and  the 
decedent  were  together.  That  legatee  is  one  of  many  defend- 
ants, and  it  does  not  appear  that  he  refused  to  testify.  The 
admissibility  of  such  evidence  is  questioned  before  the  appellate 
court  by  counsel,  but  not  decided. 

In  the  case  of  Coaltefs  Executor  et  als.  vs.  Bryant  et  ux.,  et 
als.,  1  Grat.,  18,  decided  May,  1844,  it  was  held :  Upon  a  bill 
to  contest  the  validity  of  a  will  which  has  been  regularly  ad- 
mitted to  probate,  the  function  of  the  suit  is  exhausted  when 
the  question  is  decided ;  and  if  the  will  is  declared  invalid  and 
null,  it  is  not  competent  for  the  court  to  proceed  in  that  cause 
to  make  any  farther  decree. 

A  person  acting  as  executor  is  not  to  be  made  a  party  in  his 
own  right  to  a  bill  filed  to  contest  the  validity  of  a  will  under 
which  he  is  acting. 

In  the  issue  devisavit  ml  non,  the  party  sustaining  the  will  is 
the  plaintiff,  and  entitled  to  the  opening  and  conclusion  of  the 
case  before  the  jury ;  and  the  party  contesting  the  will  is  the 
defendant,   and   this   though   the  contestant   may  propose  to 


I 


Citations  to  the  Code  of  Yirqenia.  325 

admit  on  the  record  a  prima  facie  case  in  favor  of  the 
will. 

When  a  party  has  interests  under  and  against  a  will,  he  may 
be  authorized  by  the  court  to  choose  whether  he  will  be  plain- 
tiff or  defendant  in  the  issue. 

In  the  case  oi^Yills  vs.  Spraggins,  3  Grat.,  555,  decided  Jan- 
uary, 1847,  it  was  held :  The  sentence  of  a  court  of  probate  fairly 
obtained  and  pronounced  upon,  the  merits  by  which  a  paper 
propounded  by  a  will  by  the  nominated  executor  is  rejected  in 
a  proceeding  in  which  some  of  the  next  of  kin  interested  to  de- 
feat it  are  parties  defendants,  is  conclusively  binding  upon  a 
legatee  in  said  paper,  though  he  was  an  infant  at  the  time,  and 
no  party  to  the  proceedings,  and  the  paper  cannot  be  again 
propounded  by  the  legatee. 

In  the  case  of  Ballow  vs.  Hudson,  13  Grat.,  672,  decided 
February  24,  1857,  it  was  held :  A  paper  is  propounded  to  the 
county  court  of  C.  as  the  will  of  B.,  and  is  rejected  on  the  ground 
that  B.  was  incompetent  to  make  a  will;  afterwards  the  paper  is 
propounded  for  probate  to  the  Circuit  Court  of  C,  and  that  court, 
with  knowledge  that  it  had  been  rejected  in  the  county  court, 
admits  it  to  probate.  The  sentence  of  the  county  court  is  con- 
clusive against  the  will,  and  the  sentence  of  the  circuit  court  is 
a  nullity. 

Bill  to  set  aside  a  will  states  the  facts  showing  the  probate  is 
a  nullity,  but  asks  for  an  issue  devisavit  vet  non,  and  for  general 
relief.  The  court  may  disregard  the  prayer  for  an  issue,  and 
give  the  proper  relief  under  the  prayer  for  general  relief. 

In  the  case  of  Lamberts  vs.  Cooper's  Executor  et  als.,  29  Grat., 
€1,  decided  September,  1877,  it  was  held:  On  the  trial  of  an 
issue  of  devisavit  vel  non,  if  one  of  the  parties  object  to  the  ad- 
mission of  a  person  to  testify,  on  the  ground  of  interest ;  or  if 
objection  is  made  to  the  admission  of  evidence  of  the  character 
of  a  witness  who  had  testified,  on  the  ground  that  no  proper 
foundation  had  been  laid  for  its  introduction ;  and  the  objec- 
tions are  overruled,*  and  the  witness  and  the  evidence  is  admit- 
ted, and  the  objector  does  not  except  at  the  time,  or  give  notice 
of  his  intention  to  except  before  the  verdict  is  rendered,  he  waives 
the  objection,  and  cannot  rely  upon  it  upon  a  motion  for  a  new 
trial.  The  same  rule  applies  upon  the  trial  of  such  an  issue  as 
implies  on  a  trial  at  common  law. 

Upon  a  motion  to  set  aside  the  issue,  on  the  ground  that  the 
verdict  was  contrary  to  the  evidence,  the  court  overrules  the 
motion  and  makes  a  decree  according  to  the  verdict,  and  the 
party  moving  files  a  bill  of  exceptions  to  the  refusal  of  the 
court  to  set  aside  the  verdict,  and  all  the  evidence  is  set  out  in 
the  bill  of  exceptions.  The  appellate  court  will  reject  all  the 
parol  evidence  of  the  exceptor  which  is  in  conflict  with  that  of 


326  Citations  to  the  Code  of  Yieginia. 

the  other  party;  and  if,  upon  the  evidence  of  the  appellee  and 
written  evidence  of  the  appellant,  the  case  is  in  favor  of  the 
appellee,  the  decree  will  be  afl&rmed. 

The  attesting  witnesses  of  a  will  who  are  introduced  to  prove 
a  will  was  not  properly  executed,  or  to  the  incapacity  of  a  testa- 
tor, will  not  be  excluded;  but  their  evidence  will  be  received 
with  much  suspicion. 

Though  the  statute  requires  at  least  two  witnesses  to  a  will, 
it  may  be  proved  by  one  of  them,  he  proving  the  attestation  of 
the  other. 

In  the  case  of  Conolly  vs.  Conolly  et  als.,  32  Grat.,  657,  de- 
cided January,  1880,  it  was  held :  The  court  in  which  a  bill  is 
filed  under  the  statute  to  impeach  or  establish  a  will  is  not  a 
mere  court  of  probate,  but  something  more.  It  is  a  coui-t  of 
equity,  and  though  its  powers  over  the  subject  confided  to  it  are 
limited,  it  may,  on  a  proper  bill,  review  and  correct  errors  in  its 
proceedings  after  final  decree  in  the  cause. 

The  present  state  of  the  law  of  probate  in  Virginia  is,  that  a 
sentence  pronounced  by  a  court  having  jurisdiction,  whether  it 
be  a  sentence  admitting  a  paper  to  probate  or  excluding  it  from 
probate,  as  long  as  it  remains  in  force  binds  conclusively  not 
only  the  immediate  parties  to  the  proceeding  in  which  the  sen- 
tence is  had,  but  all  other  persons  and  all  other  courts ;  and  the 
principle  applies  as  well  to  a  sentence  represented  by  a  verdict 
of  a  jury  and  decree  thereon  in  the  proceeding  by  bill  under  the 
statute,  as  to  a  sentence  pronounced  in  any  other  authorized 
probate  proceeding. 

In  the  case  of  Norvell  et  als.  vs.  Lessueur  et  als.,  33  Grat.,  222, 
decided  April,  1880,  it  was  held :  It  is  a  settled  rule  of  law  of 
the  State  of  Virginia,  that  the  admission  of  a  will  to  probate 
generally  is  conclusive  of  its  validity,  both  as  a  will  of  realty 
and  personalty,  which  cannot  be  drawn  in  question,  except  on 
an  issue  devisavit  vel  non  within  the  time  and  mode  prescribed 
by  the  statute. 

A  case  in  which  a  will,  good  as  a  will  of  personalty  but  not  good 
as  a  rule  of  realty,  though  admitted  to  probate  generally,  held : 
Upon  the  action  of  the  same  court,  between  the  same  parties  on 
the  same  day,  treating  the  probate  as  only  of  a  will  of  person- 
alty, and  this  acted  on  for  forty  years,  that  the  order  admitting 
the  order  to  probate  will  be  considered  as  only  a  probate  of  a 
will  of  personalty. 

In  the  case  of  Hartman  vs.  Stickler,  82  Va.,  225,  decided  July 
8,  1886,  it  was  held :  On  motion  for  new  trial  of  issue,  devisavit 
vel  7ion,  where  the  certificate  is  of  the  evidence,  and  not  of  the 
facts,  the  verdict  must  stand,  unless,  after  rejecting  all  the  ex- 
ceptor's parol  evidence,  and  gi^dng  full  force  and  credit  to  the 
adverse  party's,  the  decision  of  the  court  below  shall  appear 


Citations  to  the  'Code  op  Virginia.  327 

to  be  wrong.     This  is  the  case  quoted  from  10  Va.  Law  Jour- 
nal, 525. 

In  the  case  of  Kirby  vs.  Kirhy,  84  Va.,  627,  decided  March 
15,  1888,  it  was  held:  Upon  a  bill  filed  under  this  section  to 
impeach  or  establish  a  will,  the  court  can  exercise  only  the 
special  and  limited  powers  conferred  upon  it  by  the  statute ;  it 
can  only  ascertain  by  a  jury  trial,  whether  the  paper  in  question 
is  or  is  not  the  will  of  the  decedent ;  it  can  go  no  further,  and 
cannot  make  an  order  respecting  his  estate ;  and  a  decree  ap- 
pointing a  receiver  to  take  charge  of  the  estate  pendente  lite  is 
ultra  vires  and  void. 

Section  2546. 

For  1  Grat.,  18  and  19,  see  Coalter^s  Executors  et  als.,  supra j 
Section  2544. 

CHAPTER  CXIII. 

Section  2549. 

In  the  case  of  Blunt  vs.  Gee,  5  Call,  481,  decided  October, 
1805.  C.  N.  in  1788,  devised  a  tract  of  land  to  C.  N.  B.,  and  all 
the  residue  of  his  lands  to  the  testator's  son,  J.  N.  To  his  wife, 
M.  N.,  the  use  of  all  the  said  residue  of  his  lands  for  the  benefit 
of  his  children  E.  N.,  J.  N.,  and  S.  N.,  during  her  life  or  widow- 
hood, or  until  his  son,  J.  N.,  came  of  age,  when  his  wife  was  to 
have  the  use  only  of  the  plantation  whereon  he  lived.  He  then 
devised  her  the  use,  during  her  life  or  widowhood,  of  all  the  rest 
of  his  estate  to  make  use  of  for  his  children  E.  N.,  J.  N.,  and  S.  N, 
The  wife  was  entitled  to  the  use  of  the  whole  of  the  subjects  de- 
vised to  her  as  aforesaid  for  the  mainteance  of  herself  and  the 
children  during  her  widowhood,  without  accountability,  and 
upon  her  second  marriage  her  last  husband  was  entitled  to  com- 
pensation for  board  of  the  children  from  that  time.  And  as  J. 
N.  attained  to  twenty-one  years  of  age,  and  then  died  intestate 
and  without  issue,  his  whole  estate  was  decreed  to  be  divided 
as  follows :  To  his  mother  two-seventh  parts,  to  his  sisters  of 
the  whole  blood  two-seventh  parts  each,  and  to  his  brother  of 
the  half-blood  one-seventh  part,  but  his  other  half-sister,  not 
born  at  his  death,  was  entitled  to  no  part  thereof.  And  as  S.  N. 
died  under  age,  without  issue,  her  lands  devised  from  her 
brother,  J.  N,,  were  decreed  to  be  divided  thus:  To  her  mother 
one-third,  to  her  sister  of  the  whole  blood  one-third,  to  her 
brother  of  the  half-blood  one-sixth,  and  to  her  sister  of  the  half- 
blood  one-sixth. 

In  the  case  of  Garland  vs.  Harrison,  8  Leigh,  368,  decided 
May,  1837,  it  was  held :  Under  the  statute  of  Virginia  directing 
the  course  of  descents,  bastards  are  capable  of  transmitting  in- 
heritance on  the  part  of  their  mother,  and  where  a  bastard  dies 
intestate,  leaving  no  children  or  descendants,  but  leaving  his 


328  Citations  to  the  Code  of  Virginia. 

mother  surviving  and  two  bastard  brothers  by  other  fathers,  the 
estate  will  pass  to  the  mother  and  the  two  bastard  brothers. 

In  such  case  the  two  bastard  brothers,  being  regarded  as  of 
the  half-blood  only,  will  each  inherit  only  half  so  much  as  the 
mother. 

Section  2550. 

In  the  case  of  Davis  vs.  Bowe,  6  Eand.,  355,  decided  May, 
1828,  it  was  held :  The  act  of  descents  entirely  repealed  and 
abrogated  the  common  law  course  of  descents,  and  all  the  prin- 
ciples thereof.  If  an  intestate  dies  without  children,  or  their 
descendants  without  a  father,  mother,  brother,  or  sister,  but  hav- 
ing had  a  brother  and  a  sister,  both  of  whom  died  before  him, 
leaving  a  niece,  the  only  child  of  the  brother,  and  two  nephews, 
and  two  nieces,  the  children  of  the  sister,  the  real  estate  of  the 
intestate  will  descend,  and  the  personal  estate  be  distributed  to 
all  of  these  nieces  and  nephews ^er  capita  and  uoiper  stirpes,  they 
being  all  in  the  same  degree  of  consanguinity  to  the  intestate. 

•  In  such  case  the  estate  will  not  be  divided  into  moieties,  to 
be  given  one  moiety  to  the  child  of  the  brother,  according  to  the 
common  law  doctrine  of  jus  representationis,  and  the  other 
moiety  to  the  four  nephews  and  nieces,  as  representing  their 
mother,  but  it  will  be  divided  into  five  equal  parts,  one  to  each 
of  the  nephews  and  nieces,  each  one  iokxvL^jure  lyroprio. 

If  in  such  case  the  two  nieces  (children  of  the  deceased  sis- 
ter) be  dead  before  the  intestate,  living,  the  two  nephews  and 
the  niece  (the  child  of  the  brother),  and  one  of  those  deceased 
nieces  has  left  two  children,  and  the  other  six  children,  the  estate 
will  still  be  divided  into  five  parts,  of  which  one  part  will  be 
alloted  to  the  niece  (the  daughter  of  the  brother),  another 
part  to  each  of  the  nephews,  one  other  part  to  the  two  children 
of  the  deceased  niece,  as  representing  their  mother,  and  the 
other  fifth  part  to  the  six  children,  as  representing  their  mother, 
and  this  on  the  principle  contained  in  this  section,  that  if  a 
part  of  those  in  the  same  degree  be  dead,  and  a  part  living,  the 
issue  of  those  dead  shall  take  per  stirpes,  that  is,  the  share  of 
their  deceased  parent. 

Although  this  section  does  not  provide  in  terms  for  the  case 
of  a  brother  and  sister  dying  before  the  intestate,  and  leaving 
an  unequal  number  of  children,  and  does  not  in  words  declare 
what  portion  of  the  inheritance  shall  descend  to  those  children, 
yet  the  spirit  of  the  section,  taken  in  connection  with  the  first 
and  fourth  sections  of  the  entire  act,  justifies  the  construction 
that  they  will  take  per  capita. 

It  is  a  just  inference  from  this  decision,  that  if  a  grandfather 
die  intestate,  having  had  two  children,  A.  and  B.,  both  of  whom 
died  before  their  father,  but  A.  leaves  one  child,  and  B.  leaves 
SIX  children,  the  estate  of  the  grandfather  will  descend  to  all  the 


CrrATioNS  TO  the  Code  of  Vikginia.  329 

grandchildren  equally,  and  the  child  of  A.  will  only  get  a  seventh 
part,  although  if  A.  had  been  alive,  and  the  other  brother  dead, 
A.  would  have  got  a  moiety,  and  the  other  moiety  would  have 
been  divided  between  the  six  children  of  B.,  and  so  of  all  other 
cases  of  like  kind. 

In  the  case  of  Ball  et  als.  vs.  Ball  et  als.,  27  Grat.,  325,  cte- 
cided  March  23,  1876,  it  was  held :  B.  dies  intestate,  leaving  as 
her  heirs  five  children  of  her  deceased  son,  S.,  six  children  of 
her  deceased  sou,  W.,  and  a  grandchild  of  W.,  the  only  child  of 
a  deceased  daughter  of  W.  B.'s  real  estate  is  to  be  divided 
into  twelve  equal  parts,  of  which  the  five  children  of  her  son, 
S.,  the  six  children  of  her  son,  W.,  and  the  grandchild  of  W., 
representing  her  deceased  mother,  are  each  to  take  one  part. 

Section  2551. 

In  the  case  of  Jacksons  vs.  Sanders  and  Wife  et  als.,  2  Leigh, 
109,  decided  March,  1830.  A  citizen  dies  seised  of  lands  in 
Virginia,  leaving  a  brother  who  is  a  citizen,  a  sister  who  is  an 
alien,  yet  living,  children  of  the  alien  sister,  who  are  citizens, 
and  grandchildren  of  the  alien  sister,  who  are  citizens,  though 
their  fathers  as  well  as  their  grandmothers  are  aliens.  Held : 
Under  the  statute  of  descents,  the  descendants  of  the  alien 
sister  take  by  descent  one  moiety  to  be  divided  among  them 
per  stir'pes,  and  the  citizen  brother  the  other  moiety. 

In  the  case  of  TIannon  el  als.  vs.  Ilonnihan  et  als.,  85  Va., 
429,  decided  September  20,  1888,  it  was  held :  By  this  section 
it  is  provided  that,  in  making  title  by  descent,  it  shall  be  no  bar 
to  a  party  that  any  ancestor  (whether  dead  or  living)  through 
whom  he  derives  his  descent  from  the  intestate  is  or  hath  been 
an  alien. 

Section  2552. 

In  the  case  of  Doe  on  demise  of  Thompson  vs.  Anderson,  4 
Leigh,  118,  decided  January,  1833,  Testator  devises  real  and 
personal  estate  to  his  natural  daughter,  P.  A.,  to  her  and  her 
heirs  forever ;  and  if  she  should  die  leaving  no  child,  the  estate 
before  given  should  return  into  his  estate,  and  be  divided  among 
his  legitimate  children ;  but  should  she  leave  a  living  child  or 
children,  then  the  estate  should  be  heired  by  him,  her  or  them, 
as  the  case  might  be.  Held :  P.  A.  took  by  the  will  an  estate- 
tail  in  the  lands  devised  to  her,  which  the  statute  for  abolishing 
entails  converted  into  a  fee-simple,  and  barred  the  contingent 
remainder  limited  on  the  estate-tail,  the  devisee,  P.  A.,  having 
left  illegitimate  children  living  at  her  death,  capable  of  inherit- 
ing and  of  transmitting  inheritance  on  the  part  of  their  mother 
in  like  manner  as  if  they  had  been  her  lawful  children,  by  the 
provision  of  the  statute  of  descents,  1  Eev.  Code,  Chapter  96, 
Section  18. 


330  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Garland  vs.  Harrison,  8  Leigh,  368,  decided 
May,  1837,  it  was  held  :  Under  the  statute  of  Virginia  directing^ 
the  course  of  descents,  bastards  are  capable  of  transmitting  in- 
heritance on  the  part  of  their  mother,  and  where  a  bastard  dies 
intestate,  leaving  no  children  or  descendants,  but  leaving  his 
mother  surviving  and  two  bastard  brothers  by  other  fathers,  the 
estate  will  pass  to  the  mother  and  the  two  bastard  brothers.  In 
such  case  the  two  bastard  brothers  being  regarded  as  of  the 
half-blood  only,  will  each  inherit  only  half  so  much  as  tho 
mother. 

In  the  case  of  Hepburn  vs.  JDundas,  13  Grat.,  219,  decided 
March  7,  1856,  it  was  held :  There  are  three  negroes,  children 
of  the  same  mother,  born  slaves,  and  the  mother  and  children 
are  afterwards  emancipated.  One  of  the  three  dies,  having  ac- 
quired real  estate,  intestate  and  without  children.  The  mother 
is  dead.  The  other  two  take  the  estate  as  heirs  of  the  deceased 
sister. 

In  the  case  of  Bennett  et  als.  vs.  loler  et  als.,  15  Grat.,  588, 
decided  April,  1860,  it  was  held :  Upon  a  devise  to  a  daughter 
for  life,  and  at  her  death  the  property  to  be  equally  divided 
among  her  children,  an  illegitimate  child  of  the  daughter  will 
take  -with  her  legitimate  children 

Section  2553. 

In  the  case  of  Sleigh  vs.  Strider,  5  Call,  439,  decided  April, 
1805, it  was  held:  A  child  born  out  of  wedlock  in  the  year  1774 
was  legitimated  by  the  subsequent  marriage  and  acknowledg- 
ment of  the  parents  in  1776. 

In  the  case  of  Bice  et  als.  vs.  Efford  et  als.,  3  H.  &  M.,  225, 
decided  November  16,  1808,  it  was  held:  An  illegitimate  child, 
bom  before  the  1st  of  January,  1787,  of  parents  who  inter- 
married also  before  that  period  (the  father,  who  died  in  1799, 
having  recognized  the  child  by  his  will  as  his  own,  though  born 
before  wedlock),  is  entitled  to  an  equal  distribution  of  the 
father's  unbequeathed  estate  with  his  other  children  bom  after 
the  marriage. 

In  the  case  of  Ash  vs.  Way's  Administrators  et  als.,  2  Grat.^ 
203,  decided  July,  1845,  it  was  held :  A  bastard  marries,  and 
dies,  leaving  a  legitimate  child;  and  then  the  parents  of  the 
bastard  marry.  The  father  of  the  bastard,  before  the  father's- 
marriage,  and  in  the  lifetime  of  the  bastard,  recognized  her  as 
his  child,  and  so  recognizes  her  after  his  marriage,  which  is 
after  her  death.  Held:  The  child  of  the  bastard  may  inherit 
through  his  mother  from  her  father. 

For  the  reference  to  15  Grat.,  588,  see  the  case. of  Bennett  et 
als.  vs.  Toler,  5w^m,  Section  2552. 


L 


Citations  to  the  Code  of  Virginia.  331 

Section  2554. 

In  the  case  of  Heckert  et  als.  vs.  Hile's  Administrator  et  als.^ 
18  Southeastern  Reporter,  841,  decided  January  11, 1894,  it  was 
held :  Under  Code  of  1887,  this  section,  declaring  that  the  issue 
of  marriages  deemed  null  in  law,  or  dissolved  bj  a  court,  shall 
nevertheless  be  legitimate,  children  by  the  second  marriage  of 
a  man  whose  wife  had  left  him  and  gone  to  another  State 
are  legitimate,  though  born  before  the  first  marriage  was  dis- 
solved. 

Section  2556. 

In  the  case  of  Browne  et  als.  vs.  Turherville  et  als.,  2  Call,  390 
(2d  edition,  329),  decided  Octobor  24,  1800.  W.,  of  full  age, 
died  intestate,  without  issue  and  unmarried,  seised  and  pos- 
sessed of  an  estate  partly  derived  by  devise  from  his  father,  G. 
W.,  and  partly  by  descent  from  his  brother,  R.  W.,  leaving  an 
uncle  and  three  cousins,  children  of  a  deceased  uncle  of  the 
whole-blood  on  the  mother's  side,  and  an  uncle  of  the  half-blood, 
likewise  on  the  mother's  side,  and  lea-\dng  also  two  relations  on 
the  father's  side.  The  estates  were  ordered  to  be  divided  into 
two  moieties,  of  which  one  was  to  be  divided  between  the  two 
relations  on  the  father's  side,  and  the  other  moiety  was  to  be 
allotted  those  on  the  mother's  side,  as  follows,  to-wit :  two-fifths 
to  the  uncle  of  the  whole-blood ;  two-fifths  to  the  three  cousins, 
and  one-fifth  to  the  uncle  of  the  half-blood. 

In  the  case  of  Tomlinsoji  et  als.  vs.  Dillard,  3  Call,  106  (2d 
edition,  93),  decided  November  13,  1801,  it  was  held:  By  the 
act  of  1792,  the  personal  estate  is  distributable  among  the  per- 
sons entitled  to  the  real;  and  therefore,  the  mother  of  a  deceased 
infant  is  not  entitled  to  any  part  of  his  personal  property  de- 
rived from  the  father. 

In  the  case  of  Dillard  vs.  Tomlinson  et  als.,  1  Munf.,  183, 
decided  April,  1810,  it  was  held :  It  is  now  settled  that  the 
mother  of  an  infant  who  died  intestate  between  the  1st  of  Octo- 
ber, 1793  (when  the  suspended  acts  of  1792  took  effect),  and  the 
22d  of  January,  1802  (when  the  act  concerning  the  distribution 
of  unbequeathed  personal  estate  was  passed),  or  any  of  her 
issue,  by  a  person  other  than  the  father,  was  not  entitled  to  any 
part  of  such  infant's  personal  estate  derived  immediately  from 
the  father.  But  the  law  was  otherwise  relative  to  the  property 
of  an  infant  who  died  intestate  between  the  1st  of  January, 
1787  (when  the  act  of  1785  took  effect),  and  the  1st  of  October, 
1793,  the  distribution  during  that  interval  being  regulated  by 
the  acts  of  1781,  Code  60  and  61.  Neither  was  the  mother  or 
her  issue,  as  above  mentioned,  excluded,  where  the  property 
was  derived  not  immediatel}^,  but  by  intervening  succession,  from 
the  father. 

In  the  case  of  Steptoe's  Executor  vs.  Steptoe  et  als.,  1  Munf., 


332  Citations  to  the  Code  of  Virginia. 

339,  decided  October  8,  1810,  it  was  held:  Where  an  infant 
having  title  to  real  estate  of  inheritance,  derived  by  purchase 
or  descent  immediately  from  the  father,  dies  without  issue,  and 
with  no  brother  or  sister,  or  descendant  of  either,  the  father 
being  dead,  but  the  mother  living,  the  right  of  inheritance  is  not 
in  abeyance,  but  goes  in  parcenary  to  the  brothers  and  sisters  of 
the  father,  or  their  lineal  descendants,  and  vice  versa,  such 
estate  being  derived  immediately  from  the  mother,  and  she  be- 
ing dead,  but  the  father  living,  it  goes  to  her  brothers  and  sisters, 
or  their  Hneal  descendants. 

In  the  case  of  Addison  and  Wife  vs.  Core's  Administrator,  2 
Munf.,  279,  decided  May  8,  1811,  it  was  held :  The  true  con- 
struction of  the  seventh  section  of  the  act  "  reducing  into  one 
the  several  acts  directing  the  course  of  descents "  as  to  the  case 
of  an  infant,  is,  that  if  there  be  no  mother,  etc.,  and  the  estate 
was  derived  from  the  father  or  mother,  the  inheritance  shall  not 
be  divided  into  moieties,  but  the  whole  shall  go  to  the  kindred  of 
that  parent  from  whom  the  estate  was  derived.  And  the  law 
was  the  same  as  to  the  distribution  of  unbequeathed  personal 
estate  belonging  to  infants  who  died  between  the  1st  of  October, 
1793,  and  the  22d  of  January,  1802. 

In  the  case  of  Liggon  vs.  Fuqua  and'  Wife,  6  Munf.,  281,  de- 
cided February  10,  1819,  it  was  held :  Under  the  fifth  section  of 
the  Act  of  Descents  of  1792,  where  an  infant  died  Avithout  issue, 
having  title  to  certain  real  estate  derived  by  descent  immediately 
from  the  father,  leaving  no  relations  in  the  paternal  line  but  a 
grandmother  and  uncle,  the  grandmother  was  not  entitled  to  in- 
herit any  part  of  such  estate,  but  the  paternal  uncle  was  enti- 
tled to  the  whole. 

In  the  case  of  Vaughn  vs.  Jones  et  als.,  23  Grat.,  444,  de- 
cided April  25,  1873.  The  real  estate  of  R.,  a  female  infant,  is 
sold  under  decree  of  court,  and  turned  over  to  Y.,  her  guardian, 
upon  his  giving  bond  and  security  for  the  faithful  accounting 
therefor;  in  1862,  R.  married  B.,  to  whom  V.  paid  over  the 
estate  upon  his  giving  security  to  indemnify  Y.,  and  in  1864  R. 
died,  still  under  the  age  of  twenty-one  years,  leaving  a  child 
which  survived  her  but  a  few  hours,  and  her  husband  who  sur- 
vived the  child.  Held :  The  proceeds  of  the  real  estate  of  R. 
descended  as  real  estate  to  her  child,  subject  to  a  life  estate  in 
her  husband,  and  upon  the  death  of  her  child  it  passed  as  real 
estate  to  the  heirs  of  the  child  on  the  part  of  tlie  mother. 

Section  2557. 
In  the  case  of  Paup's  Administrator  et  als.  vs.  Miiigo  et  als., 
4  Leigh,  163,  decided  January,  1833,  it  was  held :  The  executor 
IS  not  entitled  to  the  surplus  of  profits,  but  the  same  is  part  of 
his  testator's  estate  undisposed  of  by  his  will,  which  belongs  to 
his  next  of  kin. 


Citations  to  the  Code  of  Virginia.  333 

It  seems,  that  since  the  statute  of  distributions  of  1785,  the 
executor  is  not,  in  any  case,  entitled  to  the  residuum  of  his  tes- 
tator's personal  estate  not  actually  bequeathed  away  by  the  will. 

In  the  case  of  Bossieux  vs.  Aldridges,  5  Leigh,  222,  decided 
April,  1834.  B.  in  his  lifetime  signs  and  seals  the  following  in- 
strument: "Not  having  made  a  will  so  as  to  dispose  of  my  pro- 
perty, and  two  of  my  sisters  having  married  contrary  to  my 
wishes,  I  wish  this  instrument  to  prevent  either  of  their  husbands 
from  having  one  cent  of  my  estate ;  say,  the  husbands  of  my 
two  sisters,  M.  and  D.,  nor  either  of  them  to  have  one  cent,  un- 
less they  survive  their  husbands,  in  that  case  I  leave  them  five 
hundred  dollars  each  to  be  paid,"  etc.,  on  which  he  endorses 
"Mem.  To  prevent  Bennet  and  Burwell  Aldridge  (the  two 
husbands)  from  having  any  part  of  my  estate  that  each  might 
claim  in  right  of  their  wives  without  a  will  made  by  me."  Held : 
The  instrument  is  a  testamentary  paper,  but  a  man  cannot  dis- 
inherit his  heirs  without  giving  his  estate  to  some  one  else. 
The  instrument  is  not  a  devise  and  bequest  of  the  testator's 
estate  by  implication  to  his  heirs  or  next  of  kin,  other  than  the 
two  sisters  M.  and  D.  and  their  husbands. 

These  two  sisters  are  entitled  to  their  shares  of  his  estate  un- 
disposed of  by  the  will. 

In  the  case  of  Templeiyian  vs.  tauntleroy,  3  Rand.,  434,  de- 
cided June,  1825,  it  was  held :  It  seems  that  the  executor  or 
administrator  of  a  husband  who  had  survived  his  wife,  but  had 
never  taken  administration  on  her  estate,  may  sue  the  guardian 
of  the  wife  for  her  estate  committed  to  him. 

In  the  case  of  Wade  vs.  Boxley,  5  Leigh,  442,  decided  Novem- 
ber, 1834.  Testator  bequeathed  slaves  to  his  wife  for  life,  re- 
mainder to  be  equally  divided  between  his  seven  children  and 
their  heirs,  to  them  and  their  heirs  forever ;  one  of  the  testator's 
children  at  the  time  of  his  death  is  a  married  woman.  She 
dies  before  the  widow,  legatee  for  life,  leaving  a  husband  and 
children  surviving  her.  Held  :  The  daughter  took  a  vested  re- 
mainder in  her  seventh  part  of  the  slaves,  which  at  her  death 
devolved  to  her  husband,  not  to  her  children. 

In  the  case  of  Breeding  vs.  Davis  et  als.,  11  Va.,  639  and  650, 
decided  July  26,  1883.  Before  issue  born,  husband  and  wife  in 
her  right  are  jointly  seised  during  their  joint  lives  of  a  freehold 
in  her  fee-simple  lands.  After  issue  born  alive,  in  such  lands 
he  becomes  tenant  by  the  curtesy  initiate,  and  holds  an  estate 
therein  in  his  own  right,  which,  after  her  death,  illo  vive?ite,  be- 
comes an  estate  by  the  curtesy  consummate. 

By  the  act  of  April  4,  1877,  the  wife's  property  is  her  sepa- 
rate estate,  which  she  may  possess,  enjoy,  and  devise  as  if  sole; 
the  husband  must  unite  with  her  in  alienating  it,  and  if  he 
refuse,  the  court  will,  if  of  opinion  that  her  interest  will  be 


334  Citations  to  the  Code  of  Virginia. 

benefited  thereby,  cause  the  absolute  title  to  be  conveyed. 
No  interest  or  estate  in  the  wife's  lands  vests  in  husband  during 
the  coverture.  But  if  after  issue  born  alive  lie  survive  her,  he 
has  an  estate  by  the  curtesy  in  the  fee-simple  lands  of  which 
she  was  seised,  but  made  no  alienation  during  the  coverture. 
The  act  only  protects  the  estate  of  the  wife  during  her  life,  but 
does  not  after  her  death  affect  the  law  of  succession  as  to  her 
real  or  personal  property. 

On  April  11,  1877,  there  descended  on  E.,  wife  of  C,  real 
estate  in  fee.  Issue  has  been  born  alive  of  their  marriage.  D., 
a  creditor  of  C,  who  was  a  non-resident,  levied  an  attachment 
on  C.'s  interest  in  that  real  estate,  and  sale  thereof  was  decreed 
to  pay  a  debt  less  than  five  hundred  dollars  in  amount.  Before 
sale,  C.  and  wife  conveyed  the  real  estate  to  B,,  who  conveyed 
the  same  with  general  warranty  and  covenant  to  quiet  title, 
purchase-money  withheld  until  its  performance,  to  M.  B.  ob- 
tained an  injunction  to  the  sale.     Held  : 

1.  The  controversy  is  not  concerning  the  debt  of  C.  to  D. 
The  question  is:  "Where  is  the  title  to  E.'s  land  vested?"  The 
title  to  her  land  is  the  issue.  The  jurisdiction  of  this  court  is 
undoubted. 

2.  C.  has  no  interest  or  estate  whatever  in  the  land  by  reason 
of  his  marriage  with  E.  The  injunction  should  have  been  per- 
petuated. 

3.  The  adjudications  in  the  attachment  suit  in  no  way  affect 
E.  or  her  land,  she  having  been  no  party  to  that  suit. 

4.  Under  the  circumstances  B.  was  entitled  to  bring  this  suit 
by  reason  of  his  subsisting  interest  in  the  subject-matter. 

In  the  case  of  Bernard  vs.  Hipkins,  6  Call,  101,  decided 
April,  1806,  it  was  held :  If  the  wife  renounce  the  will  of  her 
husband,  who  has  a  child  alive,  she  is  entitled  to  dower  in  his 
slaves  and  a  moiety  in  his  other  personal  estate  in  absolute 
property  although  he  left  grandchildren.  The  word  child  or 
children  in  a  will  does  not  extend  to  grandchildren,  unless  such 
intent  be  clear. 

In  the  case  of  McCargo  [Executor  of  James  Callicott)  vs.  Su- 
sanna Callicott,  2  Munf.,  501,  decided  October  15,  1811,  it  was 
held :  When  a  widow  marries  again,  the  slaves  which  she  held 
for  the  term  of  her  life  as  part  of  the  estate  of  her  first  hus- 
band, belong  to  her  second  husband  and  his  representatives 
until  her  death. 

In  the  case  ot  Lightfoot  vs.  Colgin  etux.,  5  Munf.,  42,  decided 
January  21,  1813,  it  was  held  :  A  deed  of  trust,  if  not  revokable 
by  the  grantor,  is  not  to  be  considered  a  will  in  disguise,  on  the 
ground  that  nearly  all  his  personal  estate  is  thereby  conveyed, 
and  that  he  reserves  to  himself  the  possession  and  control  of 
the  property  during  his  life. 


Citations  to  the  Code  of  Virginia.  335 

The  reference  to  5  Munf.,  555,  is  to  the  opinion  of  Judge 
Cabell  in  the  case  of  LigJitfoot  vs.  Colgin  et  iix.,  5  Munf.,  42, 
quoted  supra,  which  was  omitted  there  by  accident,  and  coin- 
cides with  theopinions  therein  stated. 

In  the  case  of  Ruth  et  als.  vs.  Owens,  2  Rand.,  507,  decided 
June,  1824,  it  was  held :  Notes  to  the  same  amount  as  legacies 
specified  in  the  will,  and  declared  by  the  testator  at  the  time  of 
signing  them  to  be  intended  to  reduce  the  legacies,  are  to  be 
regarded  as  legacies  in  disguise,  and  therefore  subject  to  the 
widow's  interest  in  the  personalty,  and  not  as  debts  due  by  the 
testator. 

In  the  case  of  Gentry  et  als.  vs.  Bailey,  6  Grat.,  594,  decided 
January,  1850,  it  was  held :  A  conveyance  by  a  husband,  by 
which  he  parts  absolutely  with  an  interest  in  personal  property, 
though  it  is  not  to  take  effect  until  his  death,  and  though  he  re- 
tains the  power  to  sell  and  re-invest  or  account,  and  also  the 
power  to  re-appoint  among  specified  objects,  is  valid  to  bar  the 
wife  of  her  distributable  share  therein. 

Section  2559. 

In  the  case  of  Noel  vs.  Garnet,  4  CaU,  92,  decided  October, 
1786,  it  was  held :  If  the  widow  does  not  relinquish  the  will 
within  the  prescribed  period,  she  is  barred  from  dower  in  the 
undevised  estate. 

In  the  case  of  Blunt  vs.  Gee,  5  Call,  481,  decided  October, 
1805,  it  was  held:  If  the  widow  does  not  renounce  her  hus- 
band's will  within  one  year  after  his  death,  she  loses  her  dis- 
tributive share  of  the  personal  estate  and  is  confined  to  the 
provisions  of  the  will,  but  is  entitled  to  her  dower  in  the 
lands. 

As  to  those  lying  within  the  State  of  Virginia,  the  court  of 
chancery  had  authority  to  decree  an  allotment  of  her  dower; 
but  not  as  to  those  lying  in  another  State,  without  the  jurisdic- 
tion of  the  court. 

In  the  case  of  Taylor  and  Wife  vs.  Brown  et  als.,  2  Leigh, 
p.  419,  decided  November,  1830.  B.  makes  a  deed  of  settlement 
of  property  upon  his  wife,  and  then  by  will  makes  a  disposition  of 
his  property  different  from  that  made  by  deed  of  settlement, 
and  far  less  beneficial  to  the  wife,  and  dies;  the  wife  takes  ad- 
ministration with  the  will  annexed.  Held :  1.  The  widow  may 
claim  under  the  deed  of  settlement,  without  having  renounced 
the  provision  made  for  her  by  the  will  according  to  the  statute ; 
2.  The  widow  taking  administration  with  the  will  annexed  is  not 
an  election  by  her  to  take  under  the  will,  and  not  to  claim  under 
the  deed  of  settlement. 

In  the  case  of  Dupre^s  Administrator  et  als.  vs.  Cary  and 
Wife  et  als.,  6  Leigh,  36,  decided  January,  1835.     Testator,  by 


336  Citations  to  the  Code  of  Virginia. 

his  will,  gives  real  and  personal  estate  to  his  wife,  and  leaves 
part  of  his  personal  estate  undisposed  of;  the  wife  does  not  re- 
nounce, but  accepts  the  provision  made  for  her  by  the  will. 
Held:  She  is  excluded  by  the  statute,  1  Kev.  Code,  Chapter 
104,  from  any  share  of  her  husband's  personal  estate  undis- 
posed of  by  his  will. 

In  the  case  of  Kinnaird's  Executor,  etc.,  vs.  Williams  s  Ad- 
ministrator et  als.,  8  Leigh,  400,  decided  July,  1836,  it  was  held : 
A  widow  cannot  effectually  renounce  the  provision  made  for  her 
by  the  will  of  her  husband,  so  as  to  entitle  herself  as  distributee, 
but  by  declaration  made  within  one  year  after  the  husband's 
death,  before  the  General  Court,  or  court  having  jurisdiction  of 
the  probate  of  the  will,  or  by  deed  executed  in  the  presence  of 
two  or  more  creditable  witnesses. 

In  the  case  of  Cock's  Executors  et  als.  vs.  Phillips,  12  Leigh, 
248,  decided  April,  1841.  A  married  man  dies  possessed  of 
personal  estate,  leaving  a  will  wherein  he  bequeathes  his  whole 
estate  to  his  nephews  and  nieces,  and  makes  no  provision  for 
or  mention  of  his  wife.  Held:  Upon  the  construction  of  the 
statute,  1  Rev.  Code,  Chapter  104,  Sections  26  and  29,  that,  in 
order  to  entitle  her  to  a  distributive  share  of  her  husband's  per- 
sonal estate,  the  widow  must  declare  her  dissatisfaction  with  the 
will  and  renounce  all  benefit  under  the  same,  within  the  time 
and  in  the  manner  prescribed  by  the  statute. 

In  the  case  of  Findleys  Executors  vs.  Findley,  11  Grat.,  434^ 
decided  July,  1854.  By  an  agreement  in  contemplation  of  mar- 
riage, the  intended  husband  bound  his  estate  to  pay  to  the  in- 
tended wife  certain  sums  of  money,  if  she  survived  him,  which 
were  to  be  in  bar  of  and  in  full  compensation  for  her  dower. 
Held:  This  agreement  barred  her  of  her  dower  in  her  husband's 
real  estate,  but  does  not  deprive  her  of  her  distributal  share  of 
his  personal  estate. 

The  husband  by  his  will  gave  to  the  wife  certain  personal 
estate  absolutely,  and  a  tract  of  land  for  life,  but  she,  after  his 
death,  renounced  the  will  in  the  mode  prescribed  by  the  statute. 
Held :  She  is  not  entitled  to  take  under  the  will  what  is  thereby 
given  to  her.  But  the  property  bequeathed  to  her  is  to  be  ap- 
plied to  compensate  the  legatees  who  are  disappointed  by  her 
taking  her  distributal  share  of  the  personal  estate. 

In  the  case  of  Nelsojis  Adminiittrator  vs  Koionslar''s  Execu- 
tor, 79  Va.,  468,  decided  October  6,  1884,  it  was  held :  Under 
Code  of  1860  in  order  that  provision  for  wife  in  will  of  husband 
shall  be  held  to  be  in  lieu  of  dower,  the  will  must  so  declare  in 
terms,  or  the  conclusion  from  the  provisions  of  the  ^^dll  must  be 
as  clear  and  satisfactory  to  that  effect  as  if  it  was  so  expressed. 

Under  Code  of  1860  no  question  of  election  between  dower 
and  provision  in  lieu  thereof  arises,  unless  the  intention  to  bar 


I 


Citations  to  the  Code  of  Virginia.  337 

dower  is  clear.  Under  Code  of  1873,  unless  the  intention  plainly 
appears  not  to  bar  dower,  the  election  must  be  made  by  the 
widow  between  the  dower  and  the  provision.  "When  any  provi- 
sion is  made  for  a  wife  in  her  husband's  will,  she  may,  within 
one  year  from  the  admission  of  the  will  to  probate,  renounce - 
such  provision,  and  take  such  share  of  his  personal  estate  as 
she  would  have  had  if  he  had  died  intestate. 

Section  2561. 

In  the  case  of  Sir  Jonathan  Beckwith  vs.  Beckwith  Butler  et 
als.,  1  Wash.,  224,  decided  at  the  fall  term,  1793,  it  was  held: 
All  advancements  must  be  brought  into  hotchpot  in  order  to  en- 
title the  heir  or  distributee  to  his  share  of  the  estate. 

The  reference  to  3  Eand.,  117-'20,  is  to  a  mere  ohiter  dictum 
in  the  case  Hudson  et  als.  vs.  Hudson's  Executor,  as  that  case 
went  ofl'  on  the  statute  of  limititations. 

In  the  case  of  CTiristian  and  Wife  and  Another  vs.  Coleman's 
Administrator  et  als.,  3  Leigh,  30,  decided  May,  1831.  A 
mother  tenant  for  life  of  lands,  gives  possession  of  several  par- 
cels thereof  to  four  of  her  children  respectively,  to  be  cultivated 
by  them  for  their  own  use,  but  makes  them  no  conveyance ;. 
these  children  hold  the  respective  parcels  of  land  as  tenants  at 
the  will  of  their  mother  till  her  death,  taking  the  profits  to  their 
own  use,  no  rents  being  rendered  or  demanded.  Held:  They 
are  not  bound  to  account  for  these  profits,  and  bring  them  into 
hotchpot,  as  an  advancement,  real  or  personal,  in  the  division 
and  distribution  of  the  mother's  estate  under  the  statute.  . 

In  the  case  of  Chinn  el  als.  vs.  Murray  et  als.,  4  Grat.,  348, 
decided  January,  1848.  A  father  conveys  to  a  child  a  tract  of 
land  in  fee,  subject  to  the  father's  life  estate.  In  bringing 
this  advancement  into  hotchpot,  on  the  partition  of  the  father's 
estate.  Quoire :  If  the  advancement  is  to  be  valued  as  at  the 
time  of  the  advancement,  or  at  the  death  of  the  father? 

In  the  case  of  Lee's  Executors  vs.  Boak,  11  Grat.,  182,  decided 
April,  1854.  Testator  gives  a  legacy  to  his  nephew,  but  directs 
that  he  shall  account  for  the  amount  of  certain  bonds  and  re- 
ceipts of  the  nephew  which  the  testator  had  paid  off  for  him  as 
his  security.  After  making  his  will,  testator  sliortly  before  his 
death,  and  in  contemplation  of  that  event,  delivers  to  the  nephew 
the  bonds,  etc.,  with  the  view  of  it  becoming  his  absolute  pro- 
perty in  the  event  of  the  testator's  death,  and  for  the  purpose 
of  discharging  the  nephew  from  all  accountability  for  the  same 
as  one  of  his  legatees,  in  his  settlement  with  the  executor.  Held : 
The  intention  of  the  testator  being  that  the  nephew  does  not 
account  for  the  moneys  paid  by  the  testator  for  him,  the  gift  of 
bonds  and  receipts  is  not  an  advancement  in  satisfaction  of  the 
legacy  to  the  nephew. 

22 


338  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Kriight  et  itx.  vs.  Oliver,  12  Grat.,  33,  decided 
January  29,  1855,  it  was  held:  Advancements  to  children  are 
not  brought  into  hotchpot  for  the  benefit  of  the  widow ;  she  is  only 
entitled  to  share  in  the  estate  of  the  intestate  of  which  he  died 
possessed.  The  slaves  allotted  to  the  widow  are  not  a  part  of 
the  distributable  surplus  to  be  divided  amongst  the  children  at 
the  death  of  the  intestate,  and  a  child  refusing  to  bring  his  ad- 
vancements into  hotchpot  upon  the  first  division,  is  not  thereby 
precluded  from  claiming  to  share  in  the  division  of  the  dower 
slaves. 

A  child  having  received  advancements,  and  refusing  to  share 
in  the  first  division,  but  claiming  to  share  in  the  division  of  the 
dower  slaves,  is  to  be  charged  with  interest  on  his  advancements, 
or  their  value,  from  the  death  of  the  intestate  to  the  date  of 
the  division ;  and  if  the  principal  and  interest  of  his  advance- 
ment exceed  the  amount  received  by  the  other  children,  he  is 
then  to  be  charged  with  interest  on  such  excess  from  that  time 
to  the  period  of  the  second  division.  But  having  elected  not 
to  come  in  on  the  first  division,  if  his  advancements  with  inter- 
est thereon  were  not  equal  to  the  shares  of  the  other  children, 
he  is  not  entitled  to  have  the  deficiency  made  up  upon  the  second 
division. 

In  the  case  of  Gaw  vs.  Huffman,  12  Grat.,  628,  decided  Sep- 
tember 11,  1855,  it  was  held :  Advancements  made  by  testator 
in  his  lifetime  are  not  to  be  taken  into  account  in  fixing  the  pro- 
portion of  the  debts  which  each  devisee  is  to  pay. 

In  the  case  of  Gregory  et  als.  vs.  Winston  Administrator  et  als., 
23  Grat.,  102,  decided  January,  1873,  it  was  held:  J.  held  an 
estate  for  her  widowhood  in  a  tract  of  land,  remainder  to  the 
children  of  her  husband,  two  of  whom  were  by  her.  Her  son,  E., 
used  her  money,  with  her  concurrence,  to  buy  the  interest  of  the 
remaindermen  in  the  land,  and  took  the  convej^ances  to  himself. 
Upon  the  evidence  in  the  cause,  held :  that  the  money  so  used 
by  E.  was  intended  as  an  advancement  by  his  mother  to  him. 

In  the  case  of  Pwtyear  et  als.  vs.  Cahell  et  als.,  24  Grat.,  260, 
decided  January,  1874.  W.  died  in  1857.  By  his  will  he  gave 
his  estate  to  his  wife,  "W.,  for  her  life,  to  be  used  and  controlled  by 
her  at  her  entire  discretion ;  but  as  certain  of  his  children  named 
came  of  age,  or  married,  she  was  at  liberty  to  give  them,  or 
either  of  them,  as  also  his  daughter  Mrs.  C,  such  part  of  his 
estate  as  she  could  conveniently  spare ;  she  to  be  the  sole  judge 
of  it.  And  at  her  death  he  gave  his  estate  among  his  children 
named,  each  of  whom  was  to  account  for  what  they  had  or  were 
to  receive.  In  1858  W.  has  a  tract  of  land  and  a  number  of  slaves 
divided  and  valued,  to  allot  a  part  to  each  to  whom  she  was 
authorized  to  make  advancements,  and  she  conveys  and  delivers 
one  of  the  parts  to  each  of  said  children,  she  being  then  dead. 


Citations  to  the  Code  of  Virginia.  339 

On  dividing  the  estate  on  the  death  of  W.  Held :  The  advance- 
ments made  to  the  children  in  1858  are  to  be  taken  at  the  val- 
uation then  put  upon  them,  but  without  interest  during  W.'s 
life. 

The  advancement  to  Mrs.  C.'s  children  is  to  be  valued  as  at 
the  time  it  was  delivered  to  the  guardian. 

The  slaves  in  this  lot  were  not  then  free,  and  are  to  be  valued 
at  what  they  are  then  worth  to  the  children  of  Mrs.  C. 

The  husband  of  one  of  the  children,  having  cut  timber  off  of 
another  tract,  which  he  and  W.  intended  should  be  accounted 
for,  its  value  is  to  be  charged  to  him  and  his  wife  in  the  division. 

In  the  case  of  Persinger  et  als.  vs.  Simmons  et  als.,  25  Grat., 
238,  decided  June,  1874,  it  was  held:  The  dower  of  a  widow  in 
the  land  of  her  husband  is  assigned  to  her ;  and  upon  bill  filed 
the  other  two-thirds  of  the  land  is  divided  among  ten  of  the 
twelve  heirs,  the  other  two  refusing  to  bring  their  advancements 
into  hotchpot.  Upon  the  death  of  the  widow,  the  heirs  who  re- 
fuse to  come  into  the  first  di\dsion  may  come  into  the  division 
of  the  dower  property. 

Though  there  may  be  cases  in  which  a  court  of  equity  would, 
in  her  lifetime,  decree  a  division  of  the  property  assigned  to  the 
widow  for  dower,  in  a  suit  for  partition  brought  during  her  life, 
in  which  some  of  the  children  refuse  to  bring  their  advance- 
ments into  hotchpot,  the  decree,  though  broad  enough  in  its 
terms  to  exclude  them  from  any  share  of  the  dower  lands, 
will  be  restricted  to  their  interest  in  the  two-thirds  then  di- 
vided, unless  the  pleadings  make  a  case  for  the  division  of  the 
dower  land. 

One  of  the  children  who  had  failed  to  come  into  the  first 
division  died  after  the  death  of  the  widow,  leaving  children. 
Her  husband  is  a  proper  party  plaintiff  for  a  division  of  the 
dower  land. 

In  the  case  of  Caheils  vs.  Puryear  et  als.,  27  Grat.,  902,  de- 
cided November,  1876.  W.  in  his  lifetime  made  advancements 
to  some  of  his  children.  By  his  will  he  gave  his  estate  to  his 
widow  for  her  life,  and  authorized  her  to  make  advancements  to 
their  children ;  and  he  directed  at  her  death  that  his  estate,  includ- 
ing these  advancements,  should  be  equally  divided  among  his 
children.  Mrs.  W.  did  make  advancements  to  all  of  the  children, 
but  to  one  much  less  than  to  the  others.  She  died  in  February, 
1868,  but  the  estate  was  not  ready  for  a  division  until  October, 

11874.  Held  :  Interest  should  be  charged  to  each  legatee  on  the 
excess  of  the  advancements  made  to  him  or  her  from  the  death 
of  Mrs.  W.  in  1868  until  the  time  of  the  division  in  1874. 
In  the  case  of  Lewis  vs.  Henry's  Executors  et  als.,  28  Grat., 
192,  decided  March,  1877.  Testator,  by  his  will,  gives  land, 
and  stock  upon  it,  to  his  son  H.     By  the  third  clause  of  his 


340  Citations  to  the  Code  of  Yirginia. 

will  he  gives  to  his  five  daughters,  by  name,  the  balance  of  his 
land,  his  daughter  M.  to  account  to  the  rest  of  his  daughters 
in  the  sum  of  three  thousand  five  hundred  dollars,  and  hia 
daughter  L.  five  thousand  two  hundred  dollars,  these  being  the 
amounts  paid  for  homes  for  them.  By  the  fourth  clause  he 
gives  to  his  son  H.,  and  his  five  daughters,  the  balance  of  his 
personal  property,  to  be  equally  divided  among  them.  Held : 
The  advancements  of  M.  and  L.  are  only  to  be  brought  in  the 
division  of  the  real  estate.  The  personal  estate  embraced  in 
the  fourth  clause  is  to  be  equally  divided  among  the  son  H.  and 
the  five  daughters. 

In  the  case  of  Watkins  et  als.  vs.  Yoimg  et  als.,  31  Grat.,  84, 
decided  November,  1878,  it  was  held :  If  a  gift,  unexplained  in 
the  lifetime  of  a  father,  who  dies  intestate,  to  one  of  his  children, 
is  to  be  presumed  in  law  to  be  an  advancement,  this  presump- 
tion may  be  repelled  by  evidence. 

Whether  a  gift  by  a  father  in  his  lifetime  to  a  child  is  an  ab- 
solute gift  or  an  advancement,  depends  upon  the  intention  of 
the  father;  and  his  statements  or  declarations  made  at  the  time 
of  the  gift  are  subsequently  competent  evidence  to  show  what 
was  his  intention  in  making  the  gift.  In  this  case  the  evidence 
is  conclusive  to  prove  it  was  an  absolute  gift  and  not  an  ad- 
vancement. The  only  issue  in  the  cause  being  whether  the 
gift  of  the  father  was  intended  to  be  absolute  or  an  advance- 
ment, and  all  the  evidence  having  been  taken  with  reference 
to  that  issue,  it  was  proper  for  the  court  to  decide  it  without  a 
reference  to  a  commissioner  to  inquire  and  report  upon  the 
question. 

In  the  case  of  Barrett  and  Wife  vs.  Mbrriss's  Executor  et  als.y 
33  Grat.,  273,  decided  April,  1880.  M.  died  in  1867,  having 
made  large,  though  unequal,  advancements  to  his  four  chil- 
dren. By  his  will  he  gave  an  annuity  of  two  thousand  dol- 
lars to  his  wife,  secured  on  all  his  estate,  and  directed  that  his 
real  estate  should  not  be  sold  during  her  life,  and  gave  some 
small  legacies.  He  then  says :  "  What  shall  remain  of  my  estate, 
after  funeral  charges,  expenses  of  administration,  and  debts  and 
bequests  shall  have  been  paid  and  satisfied,  I  direct  to  be  so 
divided  as  that  there  shall  be  four  shares."  Whereof  the  first, 
together  with  thirty-one  thousand  dollars,  he  gives  to  C,  and 
in  the  same  manner  to  each  of  the  other  three  children,  stating 
the  advancement  made  to  each;  and  concludes,  "shall  severally 
and  respectively  be  equal  to  one  another."  Mrs.  M.  died  in 
1872,  but  owing  to  suits  for  large  debts  of  uncertain  amount 
sued  for  and  not  ascertained  until  December,  1875,  the  estate 
was  not  ready  for  division  until  that  time.  Held :  Interest  on 
the  excess  of  advancements  to  the  children  is  to  be  charged  to 
this  date. 


Citations  to  the  Code  of  Virginia.  341 

In  the  case  of  Strother's  Administrator  et  als.  vs.  MitcheWs 
Executor  et  als.,  80  Va.,  149,  decided  January  29,  1885,  it  was 
held:  Where  one  m  loco  parentis  gives  a  legacy  as  a  portion, 
and  afterwards  advances  in  the  nature  of  a  portion  to  the  same 
person,  such  advancement  will  be  deemed  an  ademption  to  the 
legac3^  But  where  the  gift  is  given  before  the  making  of  the 
will,  and  the  will  does  not  charge  it  as  an  advancement,  the 
court  cannot  so  charge  it  in  settling  the  estate. 

A  letter  written  by  a  distributee,  after  assigning  his  share  of 
the  estate,  is  not  admissible  as  evidence  for  any  purpose  in  suit 
to  settle  the  estate.  One  not  a  party  to  the  suit  is  not  bound 
by  any  proceedings  or  decrees  therein. 

In  the  case  of  Dame's  Executor  vs.  Lloyd,  82  Ya.,  859, 
decided  January  26,  1887,  it  was  held:  An  advancement 
is  the  gift,  by  anticipation,  of  the  whole  or  part  of  what  it  is 
supposed  a  child  will  be  entitled  to  on  the  death  of  the  giver 
intestate. 

In  the  case  of  McDearman  vs.  Hodnett  et  als.,  83  Ya.,  281, 
decided  April  28,  1887,  it  was  held :  A  gift  unexplained  in  the 
lifetime  of  an  intestate  father,  to  one  of  his  children,  is  prima 
facie  an  advancement.  His  statements  at  the  time,  or  subse- 
quently, are  competent  evidence  to  show  what  was  his  intention. 
And  so  such  a  gift  to  a  son-in-law  is  prima  fade  an  advance- 
ment to  the  daughter.  The  married  woman's  act  does  not  affect 
the  question  of  advancements. 

The  case  of  McDearvnan  vs.  Hodnett,  11  Ya.  Law  Journal, 
694,  is  the  same  case  above  quoted  from  the  83  Ya. 

In  the  case  of  ^Vest  vs.  Jones  et  als.,  85  Ya.,  616,  decided  Jan- 
uary 10,  1889,  it  was  held :  Where  three  heirs  were  advanced  in 
slaves  in  1855,  1859,  and  1861  respectively,  it  was  held  proper, 
in  allotting  slaves  in  December,  1864,  to  equalize  an  heir  who 
had  received  none,  to  allot  them  as  of  their  value  in  1861,  the 
subsequent  emancipation  causing  a  loss  common  to  aU  the 
heirs. 

In  the  case  of  Davies  and  Wife  vs.  Hughes,  86  Ya.,  909,  de- 
cided May  8, 1890,  it  was  held :  Testator  bequeathed  two-thirds 
of  his  land  to  his  son  and  executor,  and  remainder  to  the  chil- 
dren of  his  deceased  sou.  Sale  to  be  at  executor's  discretion. 
He  kept  possession  and  all  profits.  The  children  lived  with  and 
served  him,  with  no  other  compensation  than  their  board. 
Held :  Executor  should  be  charged  with  rent  for  the  children's 
portion. 

In  the  case  of  Biedler  vs.  Biedler,  87  Ya.,  300,  decided  Jan- 

Iuary  8,  1891.  Where  testator  devises  certain  land  to  his  two 
sons,  and  directs  the  residue  to  be  disposed  of  as  the  law  directs. 
Held:  It  was  his  intention  to  equalize  the  two  sons  with  his 
other  children,  to  whom  gifts  had  been  previously  made,  and 


342  Citations  to  the  Code  of  Virginia. 

not  that  the  devise  should  operate  as  an  advancement   to  be 
brought  into  hotchpot  under  this  section. 

The  reference  to  4  Grat.,  397,  is  to  the  same  case  above  cited 
from  348. 


TITLE    XXXI. 
CHAPTEE  OXIV. 

Section  2562. 

In  the  case  of  Christian's  Devisee  vs.  Christian  et  als.,  6  Munf.^ 
534,  decided  March  18, 1820,  it  was  held :  In  decreeing  a  parti- 
tion in  favor  of  a  plaintiff  claiming  by  equitable  title,  the  court 
ought  not  to  direct  that  the  holders  of  the  legal  title  stand  seised 
of  the  plaintiff's  part  to  his  use,  but  that  they  convey  the  same 
by.  deed  to  him  and  his  heirs. 

In  the  case  of  Weisley  vs.  Findlay  et  als.,  3  Rand.,  361,  de- 
cided March,  1825,  it  was  held  :  The  power  of  a  court  of  equity 
to  grant  partitions  is  not  discretionary  but  ex  dehito  justitim ; 
and  whenever  a  plaintiff  has  a  right  to  partition  at  law,  he  has 
the  same  right  in  equity.  In  a  suit  brought  by  the  purchasers 
of  the  interests  of  devisees  for  a  partition,  it  is  not  regular  to 
impeach  the  conveyances  to  him,  on  the  ground  of  fraud  or 
mistake. 

In  the  case  of  Castleman  (&  McCormick  vs.  Yeitch  et  als.,  3^ 
Eand.,  598,  decided  December,  1825,  it  was  held :  Where  a  di- 
vision of  land  is  sought,  a  court  of  equity  has  jurisdiction. 

A  claim  for  a  deficiency  in  the  quantity  of  land  sold  gives 
jurisdiction  to  a  court  of  equity.  Where  a  bill  in  chancery  sets 
forth  various  claims,  and  the  defendant  files  a  general  demurrer, 
the  demurrer  will  be  overruled  if  any  of  the  claims  be  proper 
for  the  jurisdiction  of  a  court  of  equity. 

In  the  case  of  Stuarfs  Heirs,  etc.  vs.  Coalter,  4  Rand.,  74, 
decided  February,  1826,  it  was  held :  The  power  of  a  court  of 
equity  to  decree  partition  is  governed  by  the  same  principles 
which  govern  cases  of  partition  at  law.  It  may  decide  on  the 
rights  of  the  parties  to  participate  in  the  division,  but  not  on  the 
simple  question  of  title  to  the  land. 

In  the  case  of  Straughan  et  als.  vs.  Wright  et  als.,  4  Rand., 
493,  decided  November,  1826,  it  was  held :  A  bill  in  equity  for 
partition  is  a  matter  of  right,  if  the  title  of  the  plaintiff  is  ad- 
mitted or  clear,  but,  if  that  be  denied,  and  it  depends  on  doubt- 
ful facts,  or  questions  of  law,  a  court  of  equity  will  either  dis- 
miss the  bill  or  retain  it  until  the  right  is  decided  at  law. 

In  the  case  of  Ruffner's  vs.  Lewis's  Executors  et  als.,  7  Leigh, 
720,  decided  July,  1836.  P.,  after  taking  the  oath  of  insolvency, 
with  the   assent  of    his  judgment-creditor,   conveys  an  undi- 


Citations  to  the  Code  of  Virginia.  343 

vided  moiety  in  the  ten  acres  to  L.,  another  creditor  of  P.,  in 
trust  that  L.  shall  sue  for  and  recover  the  moiety  and  its  pro- 
fits, and  after  such  recovery  sell  the  land,  and  out  of  the  pro- 
ceeds of  the  sale  and  the  profits  recovered  pay  the  expenses  of 
suit  and  the  debts  secured,  and  the  surplus,  if  any,  to  P. ;  then 
a  bill  in  equity  is  filed  in  the  name  of  L.,  the  trustee,  P.,  the 
judgment-debtor  and  the  judgment-creditor,  as  plaintiffs  against 
defendants,  holding  adverse  possession  in  the  land,  and  R.,  to 
whom  the  ten  acres  were  conveyed  jointly  with  P.,  seeking  a 
recovery  against  the  adverse  defendants,  partition  between  R. 
and  P.,  and  application  of  the  funds  according  to  the  deed  to  L. 
Held:  Equity  has  jurisdiction,  and  should  not  refuse  to  enter- 
tain the  bill  on  the  ground  of  maintenance. 

In  the  case  of  Otley  vs.  McAlpivbS  Heirs,  2  Grat.,  340,  de- 
cided October,  1845.  A  tenant  by  curtesy  of  lands  purchased  the 
reversionary  interest  of  one  of  three  heirs.  Another  interest  is 
held  by  infants.  Held :  That  a  court  of  equity  will  decree  a 
partition  of  the  lands  at  the  suit  of  the  tenant  by  the  curtesy. 

In  the  case  of  Cnrrin  etals.  vs.  Spraull  et  als.,  10  Grat.,  145, 
decided  July,  1853,  it  was  held :  Upon  a  bill  for  a  partition  of 
land,  if  the  title  of  the  plaintiffs  is  doubtful,  the  court,  prior  to 
the  act.  Code,  chapter  124,  section  1,  p.  526,  should  have  sent 
the  parties  to  law  to  try  their  title. 

In  the  case  of  Custis  vs.  Siiead,  12  Grat.,  260,  decided  March 
10,  1855,  it  was  held :  Under  a  bill  for  partition  of  land,  as  a 
general  rule,  the  share  of  each  parcener  should  be  assigned  to 
him  in  severalty.  And  if,  from  the  condition  of  the  subject  or 
the  parties,  it  is  proper  to  pursue  a  different  course,  the  facts 
justifying  a  departure  from  the  rule  should,  at  least  when  in- 
fants are  concerned,  be  disclosed  by  the  report,  or  otherwise  ap- 
pear, to  enable  the  court  to  judge  whether  or  not  their  interest 
will  be  injuriously  affected  where  the  same  parties  are  entitled 
to  lands  derived  from  the  father,'  and  also  to  lands  derived 
from  the  mother,  and  some  or  all  of  them  are  infants;  if  these 
lands  are  blended  in  the  division,  it  must  appear  to  the  court 
that  the  interest  of  the  parties  in  general  will  be  promoted  by 
this  mode  of  partition,  to  enable  the  court  to  protect  the  rights  of 
the  infants. 

When  the  widow  of  the  person  who  died  seised  of  the  lands 
of  which  partition  is  sought  is  alive  and  entitled  to  dower,  she 
should  be  a  party  to  the  suit,  and  her  dower  should  be  assigned 
to  her,  and  partition  made  of  the  residue.  And  it  is  error  to 
proceed  in  her  absence,  and  make  partition  of  the  lands  subject 
to  her  right  of  dower. 

In  the  case  of  Cox  et  als.  vs.  McMullin,  14  Grat.,  82,  decided 
September  8,  1857,  it  was  held :  In  the  partition  of  real  estate, 
each  part  owner  is  entitled  to  have  in  severalty  a  part  equal  to 


344  Citations  to  the  Code  of  Virginia. 

his  interest  in  the  whole  subject,  if  this  is  practicable,  with  due 
regard  to  the  interest  of  all  concerned.  But  if  such  partition 
cannot  be  made  without  impairing  the  portion  of  some  others, 
the  property  may  be  divided  into  shares  of  unequal  values,  and 
the  inequality  may  be  corrected  by  a  charge  of  money  on  the 
more  valuable,  in  favor  of  the  less  valuable  portion,  or  other 
means  recognized  in  the  law  of  partition. 

The  general  rule  of  partition  requires  an  allotment  of  the 
several  parcels  to  the  part  owners.  Yet  it  may  benefit  both 
classes  of  owners  to  assign  the  parcels,  or  it  may  benefit  one 
class  without  injury  to  the  other,  to  assign  rather  than  to  allot, 
and  in  either  case  the  commissioners  may  avoid  the  risk  of  an 
unfortunate  allotment  by  resorting  to  an  assignment. 

In  the  case  of  Early  et  iix.  vs.  Friend  et  als.^  16  Grat.,  21,  de- 
cided August  28,  1860,  it  was  held :  One  tenant  in  common  may 
maintain  a  suit  in  equity  against  his  co-tenant  who  has  occupied 
the  whole  of  the  common  property,  for  an  account  of  the  rents 
and  profits. 

Whenever  the  nature  of  the  property  is  such  as  not  to  admit 
of  its  use  and  occupation  by  several,  and  it  is  used  and  occu- 
pied by  one  only  of  the  tenants  in  common,  or  whenever  the 
property,  though  capable  of  use  and  occupation  by  several,  is 
yet  so  used  and  occupied  by  one  as  in  effect  to  exclude  the 
others,  he  receives  more  than  comes  to  his  just  share  and  propor- 
tion in  the  meaning  of  the  statute.  When  the  common  pro- 
perty is  rented  out  by  one  tenant  in  common,  he  is  accountable 
to  his  co-tenants  for  their  share  of  the  rents  he  has  received, 
and  when  he  occupies  and  uses  the  whole  property  for  himself, 
he  is  liable  to  his  co-tenants  for  a  reasonable  rent  for  it  in  the 
condition  it  was  when  he  took  possession. 

Interest  is  to  be  paid  upon  the  rents  found  to  be  due  from 
the  tenant  in  common  in  possession  to  his  co-tenants. 

In  the  case  of  Graham  vs.  Pierce,  19  Grat.,  28,  decided  Jan- 
uary 29,  1869,  it  was  held :  Every  tenant  in  common  has  a  right 
to  possess,  use,  and  enjoy  the  common  property,  without  being 
accountable  to  his  co-tenants  for  rents  or  profits,  except  under 
the  statute,  for  so  much  as  he  may  receive  beyond  his  just  share 
or  proportion. 

Tenants  in  common  are  not  bound  to  use  the  common  pro- 
perty jointly  by  means  of  a  contract  of  partnership  between 
them,  but  may  possess,  use,  and  enjoy  the  common  property 
severally,  accounting  to  their  co-tenants  for  so  much  of  the  rents 
and  profits  as  they  may  receive  beyond  their  just  share  and  pro- 
portion. 

As  a  general  rule,  when  a  tenant  in  common  uses  the  common 
property  to  the  exclusion  of  his  co-tenants,  or  occupies  and  uses 
more  than  his  just  share  or  proportion,  the  best  measure  of  his 


^ 


Citations  to  the  Code  of  Virginia.  345 

accountability  to  his  co-tenants  is  their  share  oi  a  fair  rent  of 
the  property  so  occupied  and  used  by  him. 

But  there  may  be  peculiar  circumstances  in  a  case,  making  it 
proper  to  resort  to  an  account  of  issues,  profits,  etc.,  as  a  mode 
of  adjustment  between  the  tenants  in  common. 

In  the  case  of  a  tenancy  in  common  in  lead  mines,  an  account 
of  issues  and  profits  is  the  proper  mode  of  adjustment,  and  in 
settling  the  accounts  of  the  operating  tenants  they  should  not 
be  charged  a  certain  sum  per  ton  for  the  ore  raised  from  the 
mine,  or  credited  with  an  estimated  sum  per  ton  for  raising  the 
ore  and  manufacturing  the  lead ;  but  each  so  operating  is  to  be 
charged  with  all  his  receipts,  and  credited  with  all  his  expenses, 
on  account  of  the  operation  of  the  mine.  In  such  case  the 
operating  tenant  in  common  should  have  a  credit  in  his  account 
for  improvements  made  by  him  which  were  necessary  to  his  ope- 
ration of  the  mine. 

A  tenant  in  common,  occupying  and  using  the  common  pro- 
perty separately,  will  be  responsible  to  his  co-tenants  if  he  wil- 
fully or  by  gross  negligence  has  destroyed  or  wasted  the  com- 
mon property.  But  he  cannot  be  held  responsible  for  such  de- 
struction or  waste  in  a  case  in  which  the  bill  does  not  charge  it. 

The  commissioner  for  settling  the  accounts  of  the  parties  says 
in  his  report,  "the  complainants  will  hereafter  render  an  account 
of  a  remnant  of  the  business  still  left  in  their  hands."  There 
are  exceptions  by  both  parties  to  the  accounts  as  stated,  but 
the  court  overrules  them  all,  confirms  the  report,  and  makes  a 
final  decree  in  favor  of  the  defendant.  It  being  not  probable 
that  the  further  account  referred  to  by  the  commissioner  will 
lessen  the  amount  due  the  defendant,  if  there  be  no  other  error, 
the  appellate  court  may  amend  the  decree  by  providing  for  the 
further  account  and  affirm  it. 

In  the  case  of  Howery  vs.  Helms  et  als.,  20  Grat.,  1,  decided 
September,  1870,  it  was  held :  In  a  suit  for  partition  the  court 
has  no  authority  to  order  a  sale  of  the  land,  unless  it  is  made  to 
appear  by  an  inquiry  before  a  commissioner,  or  otherwise,  that 
partition  cannot  be  made  in  some  of  the  modes  provided  by  the 
second  and  third  sections  of  Chapter  128  of  the  Code.  But 
when  it  did  not  so  appear,  and  no  such  inquiry  was  asked  in  the 

^  court  below,  a  party  who  promoted  the  suit  and  at  whose  in- 
stance the  decree  was  made,  will  not  be  allowed  to  raise  the  ob- 
jection for  the  first  time  in  the  appellate  court. 

In  the  case  of  Frazier  vs.  Frazier,  26  Grat.,  500,  decided  Sep- 
tember 23, 1875.    F.  and  K.  owned  one-half  of  two  tracts  of  land, 
«     one  in  Bath  county  called  the  Bath  Alum,  and  the  other  in  Rock- 
^^bridge  county  called  the  Rockbridge  Alum.  The  other  half  of  these 
^Htracts  was  owned  by  J.,  an  infant  aged  seventeen  years,  sub- 


346  Citations  to  the  Code  of  Virginia. 

the  guardian  of  J.  F.  sold  the  Bath  Alum  tract  with  some  fur- 
niture to  B.  for  thirty  thousand  dollars  in  Confederate  eight  per 
cent,  bonds,  subject  to  the  ratification  of  the  court.  F.  and  E. 
then  brought  their  suit  in  equity  to  have  the  sale  ratified,  alleg- 
ing that  the  property  could  not  be  conveniently  divided,  and 
that  it  was  for  the  interest  of  all  parties,  including  the  infant, 
that  the  property  should  be  sold.  P.  and  wife  and  J.  answered, 
concurring  in  the  statements  of  the  bill,  and  in  the  prayer  that 
the  sale  to  B.  should  be  confirmed.  Three  witnesses  concur  in 
sustaining  the  statements  of  the  bill,  and  that  the  price  is  a  full 
price  for  the  land ;  and  the  court  confirms  the  sale.  Held  :  The 
sidt  of  F.  and  R.  was  a  suit  for  partition,  and  the  proceeding 
having  been  regular  throughout,  the  fact  that  the  sale  was  made 
for  Confederate  bonds,  which  have  since  become  worthless,  is 
no  ground  for  setting  aside  the  sale.  The  fact  that  the  parties 
owned  another  tract  of  land,  and  that  it  did  not  appear  that 
partition  in  kind  of  the  two  tracts  could  not  be  made,  is  not 
ground  for  setting  aside  the  sale,  the  parties  not  wishing  to  sell 
this  other  tract,  which  was  productive. 

The  fact  that  the  witnesses  spoke  of  the  value  of  the  land,  not 
referring  to  the  furniture,  which  was  not  worth  more  than  two 
thousand  dollars  or  twenty-five  hundred  dollars  in  Confederate 
money,  but  estimating  the  price  to  be  given  as  a  very  full  price 
for  the  land,  is  not  ground  for  setting  aside  the  sale,  especially 
as  this  objection  was  not  made  till  the  court  had  decreed  to 
dismiss  the  bill,  when  it  was  set  up  by  an  amended  bill. 

In  the  case  of  Zirkle  vs.  McCue,  26  Grat.,  517,  decided  Sep- 
tember 24,  1875,  it  was  held :  A  guardian  of  infants  may  main- 
tain a  suit  for  partition  of  real  estate  held  jointly  by  the  infants 
and  other  adult  parties.  In  a  suit  for  partition,  to  authorize 
the  sale  under  the  statutes  of  lands  in  which  infants  have  an 
interest,  the  case  must  be  one  in  which  partition  cannot  be  con- 
veniently made,  and  it  must  appear  that  the  interests  of  the 
parties  will  be  promoted  by  a  sale  of  the  property. 

It  is  not  necessary  that  the  facts  necessary  to  warrant  a  decree 
for  sale  should  appear  from  the  report  of  commissioners  or  by 
the  depositions  of  witnesses.  It  is  sufficient  if  the  facts  appear- 
ing in  the  record  reasonably  warrant  the  decree  of  sale ;  and 
this  especially  when  the  proceeding  is  to  defeat  the  title  of  an  in- 
nocent purchaser. 

In  the  case  of  Wright,  etc.,  vs.  Strother  et  aZ5.,.and  Wright, 
etc.,  vs.  Wright  et  ah.,  76  Va,,  857. 

2.  Co-tenants. — Partition. —  Where  some  of  the  co-tenants 
have  sold  undivided  interest  in  lands  and  reserved  liens  for 
the  unpaid  purchase-money,  the  existence  of  these  liens  on 
the  undivided  shares  does  not,  per  se,  prevent  the  division  of 
the  common  property  among  the  owners.     The  liens  will  be 


Citations  to  the  Code  of  Virginia.  347 

considered  as  attaching  to  the  parcels  under  the  partition  in 
severalty. 

3.  Idem. — Rehearing. — Reversal. — "Where  partition  has  been 
made  among  the  co-tenants,  it  will  not  be  disturbed  at  the  in- 
stance of  the  lien  creditors,  unless  they  show  that  it  is  unequal 
and  unfair  as  respects  the  security  for  their  debts. 

In  the  case  of  Effinger  vs.  Hall,  81  Va.,  94,  decided  Novem- 
ber 19,  1885,  it  was  held:  Testator  intended  to  bequeath  his 
property  to  eight  persons  or  classes  enumerated  in  his  will. 
By  manifest  mistake  the  number  of  parts  is  styled  seven  in- 
stead of  eight,  and  each  part  is  styled  one-seventh  instead  of 
one-eighth.  Equity  has  power  to  correct  such  mistake,  and  it 
is  its  duty  to  do  so. 

In  the  case  of  Davis  vs.  Tebhs  et  als.,  81  Va.,  600,  decided 
April  18,  1886,  it  was  held :  The  jurisdiction  of  equity  to  decree 
partition  of  lands,  and  take  cognizance  of  all  questions  of  law  aris- 
ing therein  affecting  title,  is  settled  by  statute.  Code  1873,  Chapter 
120,  Section  1.  A  bill  averring  that  the  plaintiff,  under  a  duly 
probated  will,  is  entitled  to  part  of  tract  of  land  held  by  defendant 
owning  the  other  part  under  the  same  will,  and  praying  for  par- 
tition, is  sufficient,  though  it  fails  to  aver  that  defendant  pur- 
chased his  part  with  notice  of  plaintiff's  claim;  it  sufficiently 
appearing  that  defendant  was  put  on  inquiry,  and  being  bound 
to  make  it,  was  affected  with  knowledge  of  all  he  might  have 
discovered  had  he  done  his  duty. 

In  the  case  of  Bradley  vs.  Zehmer,  82  Va.,  685,  decided  De- 
cember 16,  1886,  it  was  held :  This  section  authorizes  the  court, 
in  making  partition  of  land,  to  take  cognizance  of  all  questions 
of  law  affecting  the  legal  title  that  may  arise  in  any  proceeding. 
This  doctrine  applies  to  all  matters  existing  at  the  time  of  giv- 
ing the  judgment  or  decree,  which  the  party  had  opportunity  to 
bring  before  the  court. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  223. 

In  the  case  of  Fry  et  als.  vs.  Payne,  82  Va.,  759,  decided  Jan- 
uary 27,  1887,  it  was  held:  In  suits  for  partition,  the  court 
has  jurisdiction  to  settle  all  questions  of  title  arising  in  the 
case. 

In  the  case  of  Fry  vs.  Thomas,  11  Va.  Law  Journal,  295,  de- 
cided January  27,  1887,  it  was  held:  In  suit  for  partition,  a 
court  of  equity  has  authority  to  pass  upon  all  questions  of  law 
affecting  the  legal  title  that  may  arise  in  the  proceedings. 

Section  2563. 

In  the  case  of    Winner  et  ux.  vs.    Wimer  et  als.,  82  Va.,  890, 

decided  October  8,  1886,  it  was  held :  Courts  in  Virginia  have 

^    no  jurisdiction  to  partition  lands  situated  in  another  State,  be- 

HL  cause  such  right  can  only  be  exercised  under  the  lex  loci  ret  sita. 

I 


348  Citations  to  the  Code  of  Vieginia. 

Section  2564. 
In  the  case  of  Hinton  et  als.  vs.  Bland's  Administrator  et  als., 
81  Va.,  588,  decided  April  18, 1886,  it  was  held :  Court  of  equity 
hath  authority  to  pass  upon  all  questions  necessary  to  justice 
between  the  parties  in  suits  for  partition,  such  as  accounts  for 
liens  and  priorities  on  the  lands  to  be  partitioned. 

Section  2565. 
In  the  case  of  Boiling  vs.  Teel  et  als.,  76  Va.,  487. 

2,  Coparceners. — At  common  law,  coparceners  could  make 
partition  even  by  parol.  No  conveyance  is  necessary.  They 
are  seised  of  their  shares  by  descent  from  the  common  ances- 
tor, and  partition  only  adjusts  their  rights.  Qucere:  Has  the 
rule  been  changed  by  statute? 

3.  Mutual  conveyances  are  necessary  to  pass  title  in  all  cases 
where  partition  can  only  be  made  by  deed,  as  between  joint 
tenants. 

Section  2566. 
In  the  case  of  Turner  vs.  Dawson  et  als.,  80  Va.,  841,  de- 
cided October  8,  1885,  it  was  held:  Where  court  of  equity 
causes  land  ,to  be  sold  for  partition,  it  leaves  it  to  the  party 
entitled  to  the  proceeds  to  designate  whether  it  will  hold  them 
as  personalty  or  as  realty.  And  when,  for  any  reason,  that 
party  is  incapable  of  making  such  designation,  the  court  will 
hold  them  subject  to  all  the  incidents  of  realty. 

Section  2569. 

The  Code  refers  to  page  13,  6  Call,  as  an  authority  on  this 
subject.  No  such  authority  exists  in  6  Call,  save  the  case  of 
Turpin  vs.  Locket,  page  113,  where  the  question  was,  had  the 
legislature  power  to  order  the  glebe  lands  sold  and  the  money 
applied  to  the  use  of  the  poor  ?  The  court  was  equally  divided 
in  opinion,  but  held:  The  court  of  chancery  had  jurisdiction  in 
the  case,  and  might  have  awarded  an  injunction  to  prevent  the 
sale. 

In  the  case  of  Smith  et  als.  vs.  Smith,  etc.,  4  Eand.,  95,  de- 
cided February,  1826,  it  was  held :  Tenants  in  common  of  per- 
sonal estate  cannot  have  partition  at  common  law,  and,  therefore, 
a  court  of  equity  is  the  proper  tribunal  to  decree  a  partition 
of  it. 


TITLE  XXXII. 
CHAPTER  CXV. 

Section  2581. 
In  the  case  of  Cooper  vs.  Saunders,  1  H.  &  M.,  412,  decided 
October  6,  1807,  it  was  held :  No  appeal  lies  from  an  order  of  a 


I 


Citations  to  the  Code  of  Virginia.  349 

county  or  corporation  court  for  binding  out  an  apprentice,  or 
for  rescinding  his  indentures. 

It  seems  that  in  such  case,  a  writ  of  certiorari  lies  from  the 
General  Court  to  bring  up  the  record  and  correct  the  proceed- 
ings. 

In  the  case  of  Pierce  vs.  Massenhurg,  4  Leigh,  493,  decided 
May,  1833,  it  was  held:  A  father  cannot  bind  his  infant  child 
apprentice  by  indentures  to  which  the  child  is  not  a  party,  and 
indentures  of  apprenticeship  executed  by  the  father  without 
the  child's  concurrence  are  not  voidable  only,  but  void. 

In  the  case  of  Brewer  vs.  Harris  et  als.,  5  Grat.,  285,  decided 
October,  1848,  it  was  held :  The  word  month  in  a  statute  is  a 
calendar  month. 

The  order  of  the  county  court  directs  a  bastard  child  to  be 
bound  out  by  the  overseers  of  the  poor.  If  one  overseer  of  the 
poor  of  the  county  executes  the  indenture,  it  is  sufficient. 

The  master  covenants  with  the  overseers  of  the  poor  of  the 
county  without  naming  them,  and  the  indenture  is  in  the  name 
of  but  one,  and  he  and  the  master  only  execute  it.  The  inden- 
ture is  valid. 

The  indenture  contains  covenants  by  the  master  in  favor  of 
the  mother  of  the  apprentice,  and  also  in  favor  of  the  appren- 
tice, but  they  are  not  parties  to  it.  It  is  nevertheless  valid,  and 
the  remedies  will  be  adapted  to  the  case. 

The  statute  directs  that  female  apprentices  shall  be  bound 
out  until  they  are  eighteen  years  of  age.  A  binding  out  until 
the  age  of  seventeen  years  is  valid. 

The  reference  to  5  Grat.,  385,  is  an  error.  The  case  referred 
to  is  the  one  above,  cited  from  page  285. 

Section  2585. 

In  the  case  of  Bullock  vs.  Sebrell,  6  Leigh,  560,  decided  July, 
1835,  it  was  held :  Covenant  will  not  lie  in  the  name  of  appren- 
tice on  an  indenture  of  apprenticeship  entered  into  by  the  over- 
seers of  the  poor  without  any  previous  order  of  court  for  bind- 
ing out  the  apprentice ;  such  indenture  is  not  a  statutory  deed, 
and,  therefore,  covenant  can  only  be  maintained  on  it  in  the 
name  of  the  overseers  who  are  the  parties  to  it. 

Section  2587. 

In  the  case  of  Brewer  vs.  Harris  et  als.,  5  Grat.,  285,  decided 
October,  1848,  it  was  held :  The  word  month  in  a  statute  is  a 
calendar  month. 

The  order  of  the  county  court  directs  a  bastard  child  to  be 
bound  out  by  the  overseers  of  the  poor.  If  one  overseer  of  the 
poor  of  the  county  executes  the  indenture,  it  is  sufficient. 

The  master  covenants  with  the  overseers  of  the  poor  of  the 


350  Citations  toJthe  Code  of  Vieginia. 

county  without  naming  them,  and  the  indenture  is  in  the  name 
of  but  one,  and  he  and  the  master  only  execute  it.  The  inden- 
ture is  valid. 

The  indenture  contains  covenants  by  the  master  in  favor  of 
the  mother  of  the  apprentice,  and  also  in  favor  of  the  appren- 
tice, but  they  are  not  parties  to  it.  It  is  nevertheless  valid,  and 
the  remedies  will  be  adapted  to  the  case. 

The  statute  directs  that  female  apprentices  shall  be  bound 
out  until  they  are  eighteen  years  of  age.  A  binding  out  until 
the  age  of  seventeen  years  is  valid. 

Section  2592. 

In  the  case  of  Cooper  vs.  Saunders,  1  H.  &  M.,  412,  decided 
October  6,  1807,  it  was  held :  It  belongs  by  law  to  the  county, 
city,  and  borough  courts  of  this  State  exclusively  to  make  orders 
for  binding  out  poor  orphans  as  apprentices,  and  to  hear  and 
determine  in  a  summary  way  all  complaints  of  apprentices 
against  their  masters,  and  to  make  orders  for  removing  them 
when  it  shall  seem  necessary,  from  which  orders  no  appeal  lies. 

CHAPTEE  CXVI. 

Section  2597. 

In  the  case  of  KevanyB.  Waller^  11  Leigh,  414,  decided  Novem- 
ber, 1840.  Testator  bequeathes  his  infant  son  fifteen  thousand 
dollars,  to  be  invested  in  bank  stock,  or  such  other  stock  as  his 
executors  shall  think  more  profitable,  and  from  the  proceeds  or 
dividends  to  educate  him  in  the  best  manner  under  the  direction 
of  his  executors,  and  the  surplus,  if  any,  to  be  vested  in  like 
manner ;  and  appoints  two  executors.  Held :  This  was  not  an 
appointment  of  the  executors  as  testamentary  guardians  of  the  in- 
fant son.  If  two  persons  be  appointed  testamentary  guardians, 
the  office  is  joint  and  several,  and  either  may  qualify  without 
the  other,  and  without  summoning  the  other  to  accept  or  re- 
nounce the  guardianship. 

Section  2599. 

In  the  case  of  Durrett  vs.  Davis  {Guardian)  et  als.,  24  Grat., 
302,  decided  January  28,  1874,  it  was  held,  p.  315:  A  court 
of  chancery  may  appoint  a  guardian  in  the  first  instance,  as  well 
as  remove  and  re-appoint  where  a  guardian  has  been  previously 
appointed. 

Section  2600. 

In  the  case  of  Ham  vs.  Ham,  15  Grat.,  74,  decided  January 
1859,  it  was  held:  A  county  court  having  regularly  appointed  a 
guardian  for  an  infant  under  fourteen  years  of  age,  the  infant, 


Citations  to  the  Code  of  Virginia.  351 

after  he  attains  that  age,  has  not  the  right  at  his  mere  election 
to  have  his  guardian  thus  appointed  displaced,  and  a  new  one 
of  his  own  nomination  substituted. 

Section  2601. 

In  the  case  of  Call  vs.  Rujjin,  1  Call,  333,  decided  M'ay  5, 
1798,  it  was  held :  A  guardian's  bond  is  sufficiently  accurate, 
though  the  condition  does  not  state  the  appointment  of  a  guar- 
dian.    One  guardian's  bond  may  be  taken  for  two  orphans. 

In  the  case  of  Page  {Administrator  of  Nelson)  vs.  Taylor  <& 
Thornton,  2  Munf.,  492,  decided  November  21,  1811,  it  was 
held :  The  taking  a  guardian's  bond  is  not  a  ministerial,  but  a 
judicial,  act  imposed  by  law  on  the  court,  which  (and  not  its 
clerk)  is  to  judge  of  the  sufficiency  or  insufficiency  of  the  se- 
curity offered. 

In  the  case  of  Austin  vs.  Richardson,  1  Grat.,  310,  decided 
December,  1844.  The  justices  of  the  county  court  appoint  a 
guardian,  and  take  from  him  and  his  sureties  a  defective  bond, 
so  that  the  sureties  are  released  from  all  liability  for  the  default 
of  the  guardian.  Held :  Equity  has  no  jurisdiction  to  enforce 
the  liability  imposed  upon  the  justices  by  statute,  and  this, 
whether  they  are  sued  alone  or  are  joined  in  a  suit  against  the 
guardian  for  the  settlement  of  his  guardianship  accounts. 
•  In  a  suit  against  the  guardian,  the  surviving  justices,  and  the 
representatives  of  a  deceased  justice,  the  surviving  justices 
answer,  but  the  bill  is  taken  for  confessed  against  the  represen- 
tative of  the  deceased  justice.  Held :  The  court  not  having  juris- 
diction of  the  cause  as  against  the  justices  and  their  represen- 
tatives, the  bill  should  be  dismissed  as  against  the  representa- 
tive of  the  deceased  justice  as  well  as  of  the  surviving  justices. 

Section  2603. 

In  the  case  of  Ross  vs.  Crill  et  ux.,  1  Wash.,  87,  decided  at 
the  spring  term,  1792,  it  was  held:  There  is  no  doubt  but  that  a 
guardian  may  lease  the  lands  of  the  ward  during  infancy,  if  the 
guardianship  so  long  continue. 

The  reservation  of  the  rent  to  the  infant  was  proper. 

In  the  case  of  Ross  vs.  Gill  et  ux.^  4  Call,  250,  decided  April, 
1794,  it  was  held :  Guardian  appointed  by  the  court  continues 
to  the  infant's  age  of  twenty-one  unless  it  be  revoked. 

In  the  case  of  Truss  vs.  Old.,  6  Rand.,  556,  decided  Novem- 
ber, 1828,  it  was  held:  Possession  is  indispensably  necessary  to 
support  trespass  quaere  clausam  f regit. 

Guardians  in  socage  and  testamentary  guardians  (although 
they  have  no  beneficial  interest)  have  a  legal  interest  and 
the  possession  of  the  ward's  land  during  the  guardianship.  If, 
therefore,  a  person  trespass  on  the  lands  of  an  infant,  and  cut 


352  Citations  to  the  Code  of  Yikginia. 

and  carry  away  his  trees  without  the  license  of  the  guardian, 
the  ward  cannot  maintain  trespass,  but  the  guardian  may  and 
must  account  to  the  ward  for  the  damages  recovered. 

If  the  trees  are  cut  and  carried  away  by  permission  of  the 
guardian,  no  trespass  is  committed,  and  the  infant,  even  after 
the  guardianship  has  ceased,  cannot  maintain  trespass  for  the 
act.  The  wrong  must  be  compensated  to  the  ward  by  the  guar- 
dian. 

It  seems  that  if  timber  trees  growing  on  the  inheritance  of 
the  ward  are  thrown  down  by  tempest  or  otherwise,  they  be- 
come personal  property,  and  the  guardian  has  a  legal  right  to  sell 
them  as  being  perishable,  and  of  no  value  except  as  a  subject  of 
sale,  and  in  such  case  the  infant  cannot  bring  trover  for  them. 

In  the  case  of  The  Bank  of  Virginia  vs.  Craig,  6  Leigh,  399, 
decided  May,  1835,  it  was  held:  Bank  stock  standing  in  the 
name  of  F.,  guardian  of  C,  may  be  sold  and  transferred  by  the 
guardian,  and  the  ofl&cers  of  the  bank  have  no  right  to  control 
or  prevent  him  from  transferring  it  on  their  transfer  book. 

A  guardian  has  the  like  power  to  sell  the  personal  estate  of 
his  ward  which  an  executor  has  to  sell  the  assets  of  his  testator. 

In  the  case  of  Armstrong's  Heirs  vs.  ^yalkup  et  als.,  9  Grat.^ 
372,  decided  September  3,  1852,  it  was  held:  A  guardian  of  in- 
fants is  entitled  to  compensation  for  their  support,  though  he 
may  have  promised  their  friends  that  he  would  not  make  any 
charge  for  it,  and  in  fact  kept  no  accounts  against  them. 

A  payment  made  to  the  husband  of  one  of  three  wards,  who 
is  the  guardian  of  another  of  them,  though  intended  to  be  a 
payment  to  all  of  them,  is  not  to  be  credited  against  the  third 
ward,  who  is  then  an  adult,  she  not  having  authorized  him  to 
receive  it,  but  it  is  to  be  credited  against  the  husband  and  wife 
and  his  ward. 

The  accounts  of  the  three  wards  should  be  stated  separately 
from  the  commencement,  or  at  least  from  the  time  when  their 
expenses  differed  in  amount. 

In  the  case  of  Hunter  vs.  Lawrence's  Administrator  et  als.,  11 
Grat.,  Ill,  decided  April,  1854.  A  bond  executed  to  an  execu- 
tor is  transferred  by  him  to  a  guardian  as  a  part  of  the  ward's 
estate.  Whatever  interest  the  ward  has  in  the  bond  is  subject 
to  the  control  of  the  guardian,  who  may  receive  the  money  due 
thereon  if  voluntarily  paid ;  may  sue  for  it  in  a  common  law 
court  in  the  name  of  the  executor,  for  his  own  use  as  guardian, 
and  cannot  be  prevented  by  the  executor ;  or  he  may  sell  and 
transfer  the  bond. 

As  a  general  rule,  a  guardian  has  the  legal  title  of  the  ward's 
personal  estate,  and  has  the  power  and  authority  to  sell  it. 

A  guardian  violates  his  trust  when  he  sells  or  transfers  the 
property  of  his  ward  to  pay  his  own  debt. 


Citations  to  the  Code  of  Virginia.  353 

The  fraud  of  a  guardian  in  disposing  of  the  property  of  his 
■ward  is  not  sufficient  of  itself,  under  all  circumstances,  to  inval- 
idate his  transactions  with  innocent  parties. 

A  bond  executed  to  an  executor  is  transferred  by  him  to  the 
guardian  as  part  of  the  ward's  estate ;  the  guardian  is  himself  a 
legatee  for  a  large  amount  of  the  same  testator,  and  is  guardian 
of  another  legatee ;  and  he  receives  the  amount  of  those  legacies 
from  the  executor  in  bonds  and  other  evidences  of  debt.  Upon 
the  marriage  of  the  last-mentioned  legatee,  he  transfers  to  her 
husband  the  bond  belonging  to  the  first-named  ward  in  part 
discharge  of  her  legacy,  he  being  at  the  time  in  good  circum- 
stances, and  his  sureties  as  guardian  being  wealthy.  The  hus- 
band takes  the  bond  at  par,  without  knowing  or  suspecting  that 
it  is  the  property  of  the  first-named  ward ;  and  takes  it  without 
a  hope  of  gain  or  fear  of  loss,  but  simply  as  a  mode  of  payment 
convenient  to  both  parties.  Years  afterwards  the  guardian  be- 
comes insolvent  by  the  failure  of  speculations  in  which  he  is 
then  engaged.  Held:  The  husband  who  received  the  bond  is 
not  responsible  to  the  ward  whose  property  it  was  for  the 
amount  thereof. 

The  principle  upon  which  a  party  dealing  with  a  fiduciary  is 
held  responsible  is,  that  he  has  co-operated  in  the  fraud  of  the 
fiduciary. 

A  guardian  qualifies  in  1821.  In  1825  he  transfers  a  bond  of 
his  ward  to  a  party  wholly  innocent  of  any  participation  in  the 
guardian's  fraud,  in  payment  of  a  debt.  The  ward  comes  of 
age  in  1832,  and  takes  no  steps  to  obtain  his  estate  from  his 
guardian  until  1840,  when  the  guardian  becomes  insolvent.  He 
then  sues  the  sureties  of  the  guardian,  and  recovers  from  them 
the  amount  due  to  him  from  his  guardian.  In  all  this  time  the 
sureties  had  done  nothing  to  secure  the  faithful  discharge  of  his 
duties  by  the  guardian,  or  to  compel  him  to  pay  over  to  the 
ward  his  estate  after  he  became  of  age.  Held:  That  even  if 
the  pai-ty  who  had  received  the  bond  from  the  guardian  could 
be  held  responsible  to  the  ward,  he  is  not  responsible  to  the 
sureties. 

In  the  case  of  Bamum  et  als.  vs.  Frosfs  Admimstrator  et  als., 
17  Grat.,  398,  decided  April  30,  1867,  it  was  held :  A  guardian 
is  not  personally  responsible  for  the  support  and  education  of 
his  wards,  unless  he  consents  to  become  bound  for  them. 

A  guardian  placing  his  ward  with  a  third  person  to  be  sup- 
ported and  educated,  though  he  may  undertake  to  pay  the 
ward's  expenses,  does  not  thereby  relieve  the  ward's  estate,  but 
the  person  with  whom  the  ward  has  been  placed  may  proceed 
in  equity  to  subject  the  profits  of  the  ward's  estate  to  the  pay- 
ment of  her  expenses.  Bonds  executed  by  the  guardian  as 
guardian,  showing  on  their  face  that  they  are  given  for  the 
23 


354  CrrATioNS  to  the  Code  of  Virginia. 

ward's  expenses,  and  which  at  the  time  he  promises  to  pay  out 
of  the  profits  of  the  ward's  estate  as  soon  as  he  can  collect 
them,  -svill  not  relieve  the  ward's  estate  from  liability  for  these 
expenses.  If  the  condition  of  the  guardian's  bond  is  as  pre- 
scribed by  the  statute,  and  the  guardian  wastes  the  profits  of 
the  ward's  estate,  a  creditor  for  the  support  of  the  ward,  though 
she  has  taken  the  bonds  of  the  guardian  for  the  same,  not 
thereby  intending  to  release  the  ward's  estate,  may  proceed  in 
equity  against  the  guardian  and  his  sureties,  and  subject  them 
to  the  payment  of  the  amount  due  her.  The  condition  of  the 
guardian's  bond  is  to  pay  and  deliver  to  the  ward  her  estate 
when  thereto  required  by  the  justices.  A  creditor  for  neces- 
saries furnished  to  the  ward  may  be  substituted  to  the  rights  of 
the  ward  upon  the  bond,  against  the  guardian  and  his  sureties, 
for  the  payment  of  her  debt. 

In  the  case  of  Coffee  y^.  Black,  82  Va.,  567,  decided  November 
18, 1866,  it  was  held :  When  a  person  entitled  to,  but  not  having 
the  custody  of  an  infant,  is  claiming  to  recover  it,  the  court  will 
exercise  its  discretion  according  to  the  facts,  consulting  infant's 
wishes  if  of  years  of  discretion,  and  if  not,  exercising  its  own 
judgment  as  to  what  will  be  best  calculated  to  promote  the  in- 
fant's welfare,  having  due  regard  to  the  legal  rights  of  the 
claimant. 

A  parent  may  transfer  to  another  the  custody  of  his  child, 
and  the  court  will  not  pronounce  that  custody  an  illegal  restraint 
which  is  held  under  fair  agreement,  and  is  not  injurious  to  the 
child. 

A  case  where  at  the  death  of  its  mother  the  father  transferred 
his  daughter,  three  years  old,  to  her  mother's  sister,  who  reared 
her  properly  and  made  her  happy,  and  was  desirous  and  able  to 
continue  so  to  do,  and  the  child  was  loth  to  leave  her  aunt. 
After  several  years  the  father,  by  writ  of  habeas  corpus,  sought  to 
recover  the  custody.  It  appeared  that  the  change  was  calcu- 
lated not  to  promote  the  child's  welfare.  On  appeal.  Held : 
Under  the  circumstances  the  situation  of  the  child  should  not 
be  changed,  and  the  writ  should  be  denied. 

This  is  the  case  cited  as  11  Va.  Law  Journal,  103. 

Section  2604. 
In  the  case  of  Hooper  vs.  lioyster,  1  Munf.,  119,  decided 
April,  1810,  it  was  held  :  A  guardian  may  be  allowed  for  moneys 
paid  and  advanced  for  the  clothes,  schooling,  and  other  neces- 
sary expenses  of  the  ward,  out  of  the  principal  of  the  ward's 
estate,  if  it  appear  that  from  extraordinary  circumstances  such 
disbursements  were  unavoidable  without  culpable  neglect  on  the 
part  of  the  guardian,  otherwise  such  allowance  ought  to  be  made 
out  of  the  profits  only. 


Citations  to  the  Code  of  Virginia.  355 

In  the  case  of  Myers  vs.  Wade,  6  Rand.,  444,  decided  May, 
1828,  it  was  held :  A  guardian  cannot  apply  any  part  of  the 
principal  of  the  infant's  estate  to  his  education  or  maintenance 
without  the  previous  consent  of  the  court  appointing  the  guar- 
dian. 

A  parent  who  is  guardian  of  his  children  is  more  .bound  than 
others  to  a  strict  observance  of  this  rule,  for  there  is  a  natural, 
if  not  a  legal,  obligation  on  all  parents  to  support  their  children, 
if  of  ability  to  do  so. 

If  the  expense  of  maintaining  and  educating  infant  wards  ex- 
ceeds their  annual  income  until  they  become  of  an  age  to  render 
service  (say  fourteen,  fifteen,  or  sixteen  years),  and  if  when  they 
arrive  at  that  age  their  services  are  equal  to  their  support,  the 
surplus  of  expenditure  during  the  former  period  ought  to  be  set 
off  against  the  income  of  their  estates  during  the  latter  period 
till  they  arrive  at  the  age  of  twenty-one. 

In  the  cases  of  Broadus  et  als.  vs.  Rosson  and  Wife  et  als., 
Winston  vs.  Same^  3  Leigh,  12,  decided  May,  1831,  it  was  held : 
Though  a  guardian  has  no  right  to  expend  the  principal  of  his 
ward's  estate,  yet  if  he  take  up  goods  for  his  ward,  the  merchant 
who  furnishes  them  is  not  bound  to  see  that  the  profits  of 
ward's  estate  are  sufficient  to  pay  for  them  and  that  the  princi- 
pal is  not  applied  to  pay  for  them. 

In  the  case  of  Foreman  vs.  Murray  et  ux.  et  als.,  7  Leigh,  412, 
decided  March,  1836,  it  was  held :  A  guardian  shall  be  allowed 
his  disbursements  on  account  of  the  ward,  though  they  exceed  the 
income  of  the  ward's  whole  estate  in  the  hands  of  the  guardian 
and  of  the  administrator  of  tlie  ward's  father. 

In  the  case  of  Anderson  vs.  Thompson,  11  Leigh,  439,  decided 
•  November,  1840,  it  was  held :  A  guardian  shall  not  be  allowed 
for  his  disbursements  for  the  maintenance  and  education  of  the 
ward  more  than  the  profits  of  the  ward's  estate,  and  those  profits 
shall  be  taken  exclusive  of  the  increase  of  slaves  belonging  to 
the  ward. 

In  the  case  of  Armstrong's  Heirs  vs.  Walkup  et  als..,  9  Grat., 
372,  decided  September  3,  1852,  it  was  held :  A  guardian  of  in- 
fants is  entitled  to  compensation  for  their  support,  even  though 
he  may  have  promised  their  friends  that  he  would  not  make  any 
charge  for  it,  and  in  fact  kept  no  accounts  against  them. 

A  payment  made  to  the  husband  of  one  of  three  wards,  who 
is  a  guardian  of  another  of  them,  though  intended  to  be  a  pay- 

tment  to  all,  is  not  to  be  credited  against  the  third  ward,  who  is 
then  an  adult,  she  not  having  authorized  him  to  receive  it,  but 
it  is  to  be  credited  against  the  husband  and  wife  and  his  ward. 
The  accounts  of  the  three  wards  should  be  stated  separately 
iroin  the  commencement,  or  at  least  from  the  time  their  expenses 
differed  in  amount. 


356  Citations  to  the  Code  of  Yieginia. 

In  the  case  of  Evans  vs.  Pearce,  15  Grat.,  513,  decided  Jan- 
uary, 1860,  it  was  held  :  A  father  has  property  of  his  infant  chil- 
dren in  his  possession,  and  during  his  life  does  not  apply  to  the 
court  to  have  any  of  the  profits  of  that  property  applied  to  their 
support,  nor  does  he  make  any  charge  against  them  during  his 
life.  His  estate  will  not  be  allowed  anything  for  their  support 
without  the  clearest  proof  that  justice  requires  it. 

In  such  a  case  the  father  will  be  treated  as  a  guardian,  and 
his  accounts  will  be  settled  on  the  principles  applicable  to  guar- 
dians' accounts. 

In  the  case  of  Rinher  and  Mife  vs.  Streit,  33  Grat.,  663,  de- 
cided September,  1880.  The  income  of  the  estate  of  M.,  the 
ward,  being  insufficient  for  her  support  and  education,  her 
guardian,  S.,  expended  the  principal  of  the  proceeds  of  the  sale 
of  her  real  and  personal  estate  upon  her,  and  upon  the  settle- 
ment of  his  account  after  the  termination  of  his  guardianship 
he  was  still  in  advance  to  his  ward.  Held :  The  guardian  was 
not  authorized  to  use  the  principal  of  the  ward's  real  estate  for 
the  support  and  education  of  his  ward,  and  the  court  of  equity 
settling  his  account  could  not  render  the  expenditure  valid  by 
its  decree. 

Chapter  123,  Section  13,  Code  of  1873,  which  authorizes  the 
chancery  court  in  certain  cases  to  allow  the  application  of  the 
real  estate  to  the  maintenance  and  education  of  a  ward,  does  not 
authorize  the  court  to  sanction  such  application  already  made 
by  the  guardian ;  but  the  order  of  the  court  must  be  first  made 
by  the  guardian  in  order  to  authorize  it. 

The  guardian  may  apply  the  principal  of  the  ward's  personal 
estate  to  her  maintenance  and  education,  in  a  proper  case,  and 
if  the  court  would  have  authorized  it  upon  application  to  the 
court  before  it  was  done,  the  court  may  and  will  sanction  it 
upon  settlement  of  his  accounts. 

In  the  case  of  Gayle  vs.  Rayes"  Administrator,  79  Va.,  542, 
decided  August  14,  1884,  it  was  held :  What  are  necessaries  for 
which  an  infant's  estate  is  liable  depend  upon  his  condition  and 
circumstances. 

In  1871  G.  married  a  widow  having  a  son  ten  years  old,  and 
lived  with  them  on  land  owned  by  her  as  her  dower  and  by  son 
in  fee  expectant  on  her  decease.  Present  worth  of  his  interest 
was  only  $977.55.  He  had  no  personalty.  In  1874  he  was 
reasonably  well  educated.  He  died  in  1878.  G.  set  up  against 
his  estate  a  claim  of  $799.83  for  his  maintenance  and  education 
during  years  1874  to  1878  inclusive.  Held:  G.'s  claim  is  not 
sustainable  as  being  for  necessaries. 

Out  of  annual  proceeds  of  ward's  estate  his  maintenance  and 
education  may  be  provided.  To  pay  expense  thereof  in  excess 
of  annual  income,  chancery  court  may  order  sale  of  his  person- 


Citations  to  the  Code  of  Virginia.  357 

alty ;    but  neither  ward  himself   nor   his  real  estate  is  liable 
therefor. 

Not  until  present  statute  was  passed  was  it  lawful  for  the  court 
to  order  application  of  proceeds  of  ward's  real  estate  beyond  an- 
nual income  to  his  maintenance  and  education.  And  under  this 
section  such  order  must  always  precede  such  application. 

Section  2605. 
In  the  case  of  Harkrader  vs.  Bonham,  88  Va.,  247,  decided 
July  9,  1891,  it  was  held :  Under  this  section  the  court  must 
order  sale  or  sanction  previous  sale  of  such  of  ward's  personalty 
as  may  be  necessary  to  pay  proper  expenditures  beyond  income ; 
but  neither  ward  personally  nor  his  realty  are  liable  therefor. 

Section  2606. 

In  the  case  of  Hooper  vs.  Roystei\  1  Munf.,  119,  decided  April, 
1810,  it  was  held:  A  reasonable  time  ought  to  be  allowed  a 
guardian  to  put  the  money  of  a  ward  out  at  interest,  and  in  this 
case  six  months  were  considered  as  such  reasonable  time. 

In  the  case  of  Garrett  {Executor  of  Allen)  vs.  Carr  and  Wife 
and  Another^  1  Rob.,  196  (2d  edition,  209).  (Absent,  Stanard,  and 
Baldwin,  J.*)  The  decree  of  this  court  at  the  time  of  the  deci- 
sion reported  in  3  Leigh,  407,  having  remanded  this  cause  with 
directions  that  the  account  of  the  land  fund  and  the  hire  of  the 
slaves  should  be  stated  as  a  guardian's  account,  question  now 
whether  those  directions  have  been  complied  with. 

Construction  of  the  7th  Section  of  the  act  in  1  Rev.  Code, 
1819,  p.  407,  concerning  guardians,  which  requires  every  guar- 
dian to  exhibit  to  the  court  which  appointed  him,  once  in  every 
year,  "  accounts  of  the  produce  of  the  estate,  of  the  sales  and 
disposition  of  such  produce,  and  of  the  disbursements";  and  of 
the  9th  Section,  which  provides  that  the  balance  appearing 
against  the  guardian  "may  be  put  out  to  interest  for  the  benefit 
of  the  ward,  upon  such  security  as  the  court  shall  direct  and 
approve ;  or  the  guardian,  if  it  remain  in  his  hands,  shall  ac- 
count for  the  interest  to  be  computed  from  the  time  his  account 
was,  or  ought  to  have  been,  passed." 

If,  upon  the  first  settlement  by  the  guardian  of  his  account,  a 
balance  remain  in  his  hands  on  which  he  is  to  account  for  in- 
terest, such  interest  must,  in  his  second  annual  account,  be 
credited  to  the  ward,  like  other  profits  of  the  estate ;  and  if  the 
interest  and  other  profits  credited  in  this  second  account  exceed 
the  disbursements,  the  surplus,  whether  it  arise  from  the  interest 
aforesaid,  or  fi*om  other  profits,  wil]  constitute  a  balance  against 
the  guardian,  on  which,  if  it  remain  in  his  hands,  he  must  ac- 

•  They  had  been  counsel  for  the  appellees. 


358  Citations  to  the  Code  of  Virginia. 

count  for  interest,  which  interest  must,  in  the  third  annual  ac- 
count, be  credited  to  the  ward ;  and  so  on,  toties  quoties. 

The  case  of  a  guardian  indebted  to  his  ward  for  the  annual 
value  of  land  occupied,  and  of  a  slave  possessed  by  him,  forms 
an  exception  to  the  general  rule  that  interest  is  not  to  be  allowed 
on  estimated  rents  and  hires.  Such  annual  value  must,  in  the 
annual  account  exhibited  by  the  guardian,  be  credited  to  his 
ward,  and  the  surplus  beyond  the  disbursements  will  bear  in- 
terest like  other  profits  of  the  estate. 

Where  a  guardian  has  returned  no  account  to  the  court  which 
appointed  him,  and  a  bill  in  equity  is  filed  against  him,  the 
court  of  equity  will  charge  him  with  interest  from  the  time  and 
in  the  manner  that  he  would  have  been  charged  if  his  account 
had  been  exhibited  annuall}-  to  the  court  which  appointed  him ; 
and  will  settle  the  accounts,  in  other  respects,  upon  the  princi- 
ples that  would  have  governed  the  settlements  if  regular  returns 
had  been  made  to  that  court. 

From  the  time  that  the  guardianship  terminates,  the  account 
between  the  guardian  and  ward  will  be  stated  upon  the  ordi- 
nary principle  that  prevails  between  debtor  and  creditor. 
Sums  paid  after  that  time  by  the  guardian  to  the  ward  will  be 
credited  at  the  respective  dates  of  such  payment,  so  as  to  stop 
interest  joro  tanto  from  those  dates. 

In  the  case  of  Cunningham  vs.  Cunningham,  4  Grat.,  23,  de- 
cided July,  1847,  it  was  held :  It  is  error  to  aggregate  the  prin- 
cipal and  interest  due  on  the  guardian's  account,  and  give  a 
decree  for  the  whole  sum  with  interest  thereon. 

In  the  case  of  Armstrong's  Heirs  vs.  Walkup,  12  Grat.,  608, 
decided  September  11,  1855,  it  was  held :  Upon  the  coming  of 
age  or  marriage  of  a  ward,  or  the  death  of  a  guardian,  the  guar- 
dianship terminates ;  and  from  that  time  only  simple  interest  is  ta 
be  charged  on  any  balance  then  in  his  hands  or  which  he  after- 
wards received. 

The  estate  of  the  ward  having  come  into  the  possession  of 
the  guardian,  his  bond  of  office  binds  him  in  his  lifetime,  and 
his  estate  after  his  death,  for  the  interest,  hires,  and  profits  re- 
ceived by  him,  whether  received  before  or  after  the  termination 
of  his  authority  as  guardian ;  but  from  the  termination  of  the 
guardianship,  the  same  to  be  accounted  for  on  the  ordinary 
principles  governing  accounts  between  debtor  and  creditor. 

A  guardian  is  not  to  be  charged  interest  upon  the  money  re- 
ceived by  him  from  the  day  it  is  received,  but  he  is  to  be  allowed 
SIX  months  in  which  to  invest  it. 

Section  2608. 
_  In  the  case  of  Snaveley  vs.  Harkrader  et  ah.,  29  Grat.,  112,. 
decided  September,  1877.     A  guardian  who  receives  the  money 


X 


Citations  to  the  Code  of  Virginia.  350 

of  his  wards  and  does  not  invest  it,  but  retains  it  in  his  own 
hands,  is  to  be  charged  interest  thereon  from  the  date  of  its 
receipt,  and  not  from  the  end  of  the  thirty  days  allowed  by  the 
statute  to  the  guardian  to  make  investments. 

A  guardian  receiving  from  the  administrator  of  the  father  of 
his  ward  his  own  bonds  bearing  12  per  cent,  interest  as  a  part  of 
the  ward's  estate,  and  not  investing  the  same,  is  to  be  charged 
the  same  rate  of  interest  upon  it  to  the  termination  of  his  guar- 
dianship. 

In  the  stating  of  a  guardian's  account,  his  commissions  on  the 
money  received  by  him  should  be  credited  at  the  time  of  the  re- 
ceipt of  the  money,  and  interest  only  charged  on  the  balance. 

Section  2609. 

In  the  case  of  Lemon  [Guardian)  vs.  Hansbarger,  6  Grat.,  301, 
decided  July,  1849,  it  was  held :  A  second  guardian  of  an  infant 
has  no  authority  to  file  a  bill  in  his  own  name,  against  a  former 
guardian,  for  an  account  of  his  transactions  in  relation  to  the 
ward's  estate. 

An  infant  may  by  his  next  friend  call  the  acting  guardian,  or 
any  preceding  guardian,  to  account  by  a  bill  in  chancery ;  but 
the  bill  must  be  in  his  own  name  by  his  next  friend. 

In  the  case  of  Snaveley  vs.  Ilarkrader  et  ah.,  29  Grat.,  112, 
decided  September,  1877.  Infants  by  their  next  friend  file  their 
bill  against  their  guardian,  first  to  discharge  and  falsify  the  set- 
tled account  of  their  guardian  and  to  have  him  removed;  and 
second,  to  have  a  sale  of  their  lands.  The  guardian  demurs  to 
the  bill  on  the  ground  that  it  is  multifarious.  Held :  That,  as  the 
court  cannot  sell  the  infants'  land  on  a  bill  filed  by  them,  and  no 
relief  on  that  part  of  the  bill  can  be  given,  the  court  will  con- 
sider the  case  as  if  that  part  of  the  bill  was  not  in  it ;  and  the  de- 
murrer was  properly  overruled. 

Pending  the  case  some  of  the  plaintiffs  came  of  age,  and  they" 
all  unite  in  an  amended  bill  asking  the  same  relief  against  the 
guardian;  and  the  plaintiffs  who  have  come  of  age  ask  for  a^ 
partition  of  the  land  and  the  sale  of  it,  on  the  ground  that  it 
cannot  be  divided  in  kind  without  injury  to  all.  The  guardian 
demurs  to  the  amended  bill  on  the  same  ground.  Held :  The 
court  cannot  decree  a  partition  and  sale  of  the  land  on  this  bill, 
and,  therefore,  it  will  be  treated  as  if  this  part  of  the  bill  was 
not  in  it;  and  the  demurrer  was  properly  overruled. 

Pending  the  suit  all  the  plaintiffs  go  off  to  their  relations  in 

the  State  of  Illinois,  and  one  of  them  qualifies  in  that  State  as 

guardian  of  the  infants,  and  they  then  amend  their  bill,  stating 

these  facts  and  filing  a  copy  of  the  guardian's  bond,  and  asking 

Wu     that  their  property  may  be  turned  over  to  their  Illinois  guar- 


360  Citations  to  the  Code  of  Virginia. 

ing  the  amount  due  to  each  of  his  wards,  the  cause  came  on  to  be 
heard,  when  the  court  made  a  decree  moving  the  first  guardian, 
and  that  he  should  pay  over  to  the  Illinois  guardian  the  amounts 
severally  reported  to  be  due  to  his  wards.  Held:  Upon  the 
large  discretion  vested  in  the  courts  in  the  appointment  and  re- 
moval of  guardians,  and  the  circumstances  in  this  case  as  de- 
veloped by  the  evidence,  the  court  did  not  etr  in  removing  the 
guardian. 

It  was  error  to  decree  the  payment  of  the  money  of  the 
wards  to  the  Illinois  guardian  without  proceeding  in  the  mode 
prescribed  by  the  statute,  Code  of  1873,  Chapter  125,  Section  5. 

The  Illinois  guardian  may  file  his  petition  in  this  cause  for 
the  removal  of  the  personal  property  of  his  wards,  and  the  pro- 
ceedings prescribed  by  said  statute  may  be  had  therein. 

The  sale  or  partition  of  lands  of  the  infants  cannot  be  made 
in  this  case,  but  the  proceeding  to  effect  this  object  must  be 
as  prescribed  by  the  statute,  Code  of  1873,  Chapter  124,  Sec- 
tions 2  to  8. 

In  the  case  of  Rinker  and  Wife  vs.  Streit,  33  Grat.,  663,  de- 
cided September,  1880,  it  was  held:  Chapter  123,  Section  13, 
Code  of  1873,  which  authorizes  the  chancery  court  in  certain 
cases  to  allow  the  application  of  the  real  estate  to  the  mainte- 
nance and  education  of  a  ward,  does  not  authorize  the  court  to 
sanction  it  upon  settlement  of  his  accounts. 

In  the  case  of  Gayle  vs.  Hayes  Administratoi's,  79  Va.,  542, 
decided  August  14,  1884,  it  was  held:  Not  until  the  present 
statute  was  passed  was  it  lawful  for  the  court  to  order  application 
of  proceeds  of  ward's  real  estate,  beyond  annual  income,  to  his 
maintenance  and  education,  and  under  that  act  such  order  must 
always  precede  such  application. 

In  the  case  of  Cummings  vs.  Simpson,  11  Va.  Law  Journal, 
462,  decided  January  6,  1887,  it  was  held :  A  guardian  cannot 
expend,  for  the  maintenance  or  education  of  his  ward,  his  real 
estate  or  the  proceeds  thereof  in  the  guardian's  hands,  stamped 
with  the  character  of  realty,  in  excess  of  the  annual  income  from 
the  same,  without  first  obtaining  from  the  circuit  court  having 
jurisdiction  in  the  premises  an  order  authorizing  such  expendi- 
ture as  provided  for  in  said  section. 

In  the  case  of  Harkrader  vs.  Bonham,  88  Va.,  247,  decided 
July  9,  1891,  it  was  held :  Under  this  section  the  chancery  court 
may  order  sale  of  ward's  realty  when  it  appears  that  his  proper 
maintenance  and  education,  or  other  interests  require  the  pro- 
ceeds beyond  the  annual  income  thereof,  to  be  applied  for  his 
use ;  but  if,  when  the  court  is  called  upon  to  confirm  such  sale, 
the  necessity  therefor,  which  seemed  to  exist  when  the  sale  was 
ordered,  shall  have  ceased,  it  is  proper  that  the  court  should  re- 
fuse to  confirm  the  sale. 


Citations  to  the  Code  of  Virginia.  361 

Section  2610. 

In  the  case  of  Latham^  hy,  etc.,  vs.  Latham,  30  Grat.,  307,  de- 
cided July,  1878,  it  was  held:  The  father  is  the  legal  custodian 
■of  the  minor  children,  and  they  will  not  be  taken  from  his  cus- 
tody without  the  strongest  reasons  therefor ;  and  this  right  is  not 
affected  by  the  voluntary  separation  of  the  parties. 

Notice  is  given  to  take  depositions  at  two  distant  places  on 
the  same  day.  The  other  party  may  attend  at  one  of  the  places, 
and  object  to  the  depositions  taken  at  the  other  place  for  want 
of  notice ;  but  if  he  attends  by  his  counsel  at  both  places,  he 
cannot  except  to  the  depositions  taken  at  either  or  at  both 
places. 

Section  2614. 

In  the  case  of  Stewart  vs.  Crahhins  {Giiardian) ,  6  Munf.,  280, 
decided  February  10,  1819,  it  was  held:  An  action  Jor  an  assault 
and  battery  committed  on  an  infant  ought  not  to  be  brought  in 
the  name  of  the  guardian  of  such  infant,  but  in  the  name  of 
such  infant  by  his  or  her  guardian  or  next  friend ;  an  error  in 
this  respect  before  January  1,  1820,  was  fatal,  even  after  general 
verdict  for  the  plaintiff. 

In  the  case  of  Burwell  et  als.  vs.  Corbin  et  als.,  1  Rand.,  131, 
decided  April,  1822,  it  was  held :  A  man  who  is  made  ?kprochein 
ami  to  an  infant  without  his  knowledge  or  consent  is  not  dis- 
qualified from  being  a  witness;  but  qumre,  what  shall  amount 
to  a  recognition  by  such  prochein  ami  that  his  name  was  pro- 
perly used? 

In  the  case  of  Lemon  [Guardian)  vs.  Hansharger,  6  Grat.,  301, 
decided  July,  1849,  it  was  held :  An  infant  may,  by  his  next 
friend,  call  the  acting  guardian,  or  any  preceding  guardian  to 
account  by  a  bill  in  chancery ;  but  the  bill  must  be  in  his  own 
name  by  his  next  friend. 


TITLE  XXXIII. 

CHAPTER  CXVII. 

Section  2616. 

In  the  case  of  Garland  vs.  Loving,  1  Rand.,  396,  here  referred 
to,  there  is  nothing  which  can  be  used  as  a  guide  in  this  work. 

In  the  case  of  Piercers  Administrator,  etc.,  vs.  Trigg's  Heirs, 
10  Leigh,  406  (2d  edition,  423),  decided  July,  1839,  it  was  held  : 
Where  land  is  purchased  by  partners  for  partnership  purposes 
with  partnership  funds,  and  is  used  as  a  part  of  the  stock  in 
trade,  a  court  of  equity  deems  such  land  partnership's  property; 
and  though,  if  the  conveyance  has  been  made  to  both  parties, 
there  will,  upon  the  death  of  one,  pass  to  his  heirs  a  legal  title, 


k 


362  Citations  to  the  Code  of  Virginia. 

yet  the  whole  beneficial  interest  devolves  upon  the  survivor,  and 
he  may  sue  the  heirs,  compel  a  sale,  and  dispose  of  the  pro- 
ceeds as  he  would  of  the  personal  estate  of  the  firm. 

In  the  case  of  Talley  et  als.  vs.  Stark's  Administratrix  ei  als.^ 
6  Grat.,  339,  decided  October,  1849.  Testator  says :  "  Believ- 
ing that  a  sale  of  my  property  at  this  time  would  be  ruinous  to 
the  general  interest  of  my  wife  and  our  children,  my  will  and  de- 
sire is  that  all  my  estate  (after  payment  of  my  debts  as  provided 
for)  be  kept  together  until  my  youngest  child  becomes  of  age ;  ta 
be  controlled  and  managed  by  my  executors  and  my  wife  with  their 
best  discretion,  so  as  to  make  it  productive  of  the  greatest 
amount  of  profit  for  the  support  of  my  wife  and  children." 
Held :  That  a  court  of  equity  may  direct  a  sale  of  the  real  estate 
if  it  is  for  the  benefit  of  the  infant  children,  and  those  who  are 
of  age  consent. 

In  a  suit  in  equity  by  the  guardian  of  infants  for  the  sale  of 
their  real  estate,  a  guardian  for  the  infants  ad  litem  may  be  ap- 
pointed at  rules.  It  is  not  necessary  in  the  decree  for  the  sale 
of  the  land  to  direct  that  the  guardian  shall  give  security,  under 
Section  20  of  the  act,  1  Rev.  Code,  Chapter  108,  pages  408-10. 
The  decree  directing  the  sale  to  be  made  on  the  premises,  the 
commissioner  acts  irregularly  in  making  it  at  a  different  place ; 
especially  after  advertising  that  it  was  to  be  made  on  the 
premises.  He  should  report  to  the  court  that  it  could  not 
be  made  there  for  want  of  bidders,  and  obtain  instructions  for 
his  future  action.  A  sale  having  thus  been  irregularly  made,  as 
the  purchasers  could  not  enforce  their  contracts  if  resisted  by 
the  parties  in  the  cause,  they  ought  not  to  be  compelled  to  per- 
fect them  if  they  object. 

The  appellate  court  having  set  aside  certain  parcels  of  the 
land  at  the  instance  of  the  purchasers,  who  were  the  appel- 
lants in  the  cause,  and  the  ground  of  the  objection  to  the  sale 
being  such  as  the  infant  parties  may  make  to  all  the  sales, 
the  court  will  set  aside  the  whole  decree  confirming  the  sale  of 
all  the  parcels,  and  though  the  other  purchasers  are  satisfied 
with  their  purchases,  and  are  not  parties  to  the  appeal ;  and  will 
send  the  cause  back  for  the  court  below  to  determine  whether 
these  last-mentioned  sales  ought  to  be  set  aside,  or  confirmed 
with  the  consent  of  the  purchasers,  and  for  the  benefit  of  the 
infant  defendants. 

In  the  case  of  Cooper  vs.  Hepburn,  15  Grat.,  551,  decided  May 
15,  1860,  it  was. held:  H.  devises  real  estate  to  M.  during  his 
natural  life,  and  to  his  children  if  he  should  have  lawful  issue ; 
if  not,  then  at  his  decease  to  H.'s  grandchildren.  At  the  death 
of  M.,  H.  is  not  married,  but  he  afterwards  marries  and  has 
lawful  children.  Upon  the  birth  of  the  first  child  of  M.  the 
remainder  vests  in  the  child,  subject  to  open  and  let  in  tlie  after- 


Citations  to  the  Code  of  Vibginia.  363 

born  cliildren  as  they  severally  come  into  being;  and  the  re- 
mainder in  favor  of  the  grandchildren  was  defeated,  and  there- 
fore the  grandchildren  were  not  necessary  parties  to  a  suit  by 
the  guardian  of  M.'s  children  for  a  sale  of  the  real  estate. 

M.,  as  guardian  of  his  infant  children,  files  a  bill  for  the  sale 
of  the  real  estate  held  by  himself  for  life  and  by  his  children  in 
remainder,  and  it  is  sold  accordingly.  This  is  authorized  by 
the  statute. 

In  the  case  of  Faulkner  et  als.  vs.  Davis  et  als.,  18  Grat.,  651, 
decided  April,  1868,  it  was  held :  A  court  of  equity  will  enjoin 
a  sale  under  a  deed  of  trust  given  to  secure  the  purchase-money 
of  land  where  there  is  a  cloud  upon  the  title  which  would  occa- 
sion a  sacrifice  at  such  a  sale. 

It  seems  that  in  Virginia  a  court  of  equity  has  not  authority, 
under  its  general  jurisdiction  as  guardians  of  infants,  to  sell 
their  real  estate  whenever  it  is  for  the  advantage  of  the  infants 
to  do  so.  The  statutes  in  relation  to  the  sale  of  infants'  lands 
are  remedial  in  their  nature,  and  should  be  construed  liber- 
ally. 

By  the  act  of  February  18,  1853,  Session  Acts,  Chapter  34, 
p.  39,  and  the  previous  acts  on  the  subject,  courts  of  equity  had 
authority  to  sell  the  lauds  in  which  the  infants  had  an  interest, 
whether  in  possession  or  remainder,  vested  or  contingent,  if  the 
proper  parties  should  be  brought  before  the  courts. 

Two  vacant  lots  in  the  city  of  Richmond  are  conveyed  to 
trustees  in  trust  for  N.  and  his  wife,  L.,  and  the  survivor  of  them 
for  life,  and  at  the  death  of  the  survivor  to  be  conveyed  by  the 
trustees  to  the  children  of  N.  and  his  wife,  who  should  be  living 
at  the  death  of  the  survivor,  and  the  descendants  of  such  of  the 
children  as  would  be  then  dead  leaving  decendants ;  and  upon  the 
further  trust,  that  if  N.  should  think  it  expedient  to  sell  the  lots, 
or  any  part  of  them,  the  trustees  should  permit  him  to  do  so, 
the  proceeds  of  sale  to  be  secured  and  held  upon  the  same  trusts. 
N.  dies  without  selling  the  lots,  leaving  his  wife  and  five  chil- 
dren surviving  him.  The  trust  to  sell  continues,  and  a  court  of 
eqiiity  may  execute  it. 

Upon  a  bill  filed  by  the  widow  of  N.  against  the  children  and 
trustees  for  the  sale  of  the  lots,  the  court  may  decree  a  sale, 
and  the  descendants  of  any  child  dying  in  the  lifetime  of  the 
widow  will  be  bound  by  the  decree,  the  parties  before  the  court 
representing  any  such  descendants  who  may  become  entitled 
under  the  trusts  of  the  deed. 

Although  the  bill  was  prepared  with  reference  to  the  sale  of 
the  land  of  infants  under  the  statute,  yet  all  the  facts  having 
been  stated  in  it,  and  all  the  proceedings  having  been  regularly 
conducted,  it  was  competent  for  the  court  to  make  a  decree 
therein  for  the  sale  of  the  property,  if  upon  these  facts,  upon 


364  Citations  to  the  Code  of  Vibginia. 

any  ground  whatever,  the  court  of  chancery  had  authority  to 
make  such  a  decree. 

See  the  case  of  Snaveley  vs.  HarJcrader,  29  Grat.,  112,  quoted 
^upra,  Section  2609. 

In  the  case  of  Quisenberry  et  als.  vs.  Barbour,  31  Grat.,  491, 
decided  January,  1879.  F.  conveys  land  to  Q.  in  trust  for  J., 
the  daughter  of  F.  and  wife  of  Q.,  for  her  life,  and  then  toh  er 
children.  Afterwards  J.  and  her  children,  who  are  infants  un- 
der fourteen  years  of  age,  by  their  next  friend  tile  their  bill 
against  Q.,  the  trustee,  for  the  sale  of  the  land,  and  there  is  a 
decree  for  the  sale,  and  a  sale  made  more  than  six  months  after 
the  decree,  and  this  sale  is  confirmed  and  a  conveyance  made  to 
the  purchaser.  In  an  action  of  ejectment  by  the  children  of  J. 
after  her  death  to  recover  the  land  from  a  vendee  of  the  pur- 
chaser. Held:  The  court  having  had  jurisdiction  of  the  case 
under  the  statute,  the  validity  and  propriety  of  the  decree  for 
the  sale  of  the  land  cannot  be  questioned  in  a  collateral  pro- 
ceeding. 

The  sale  having  been  made  more  than  six  months  after  the 
decree  for  the  sale,  the  sale  cannot  be  set  aside,  even  if  the  de- 
cree was  erroneous. 

The  facts  that  the  infants  were  plaintiffs  with  their  mother 
instead  of  being  made  defendants,  is  no  objection  to  the  pro- 
ceeding in  the  suit  for  a  sale  of  the  land. 

In  the  case  of  Palmer  et  als.  vs.  Garland's  Committee  et  als., 
81  Va.,  444,  decided  February  11, 1886.  H.,  committee  of  G.,  a 
female  lunatic,  institutes  a  suit  under  Code  1873,  Chapter  124,  to 
sell  her  contingent  estate  in  lands,  and  conducts  it  in  the  proper 
manner,  and  against  the  proper  parties,  and  adduces  the  proper 
evidence,  in  every  respect  in  accordance  with  the  requirements 
of  the  statute,  and  in  his  bill  he  presents  the  bids  of  certain  par- 
ties who  already  owned  other  contingent  interest  in  the  same 
lands.  The  court  deeming  that  the  interest  of  the  lunatic  will 
be  promoted,  and  the  rights  of  no  one  violated  by  the  sale  of 
her  said  contingent  estate,  decrees  that  the  proposed  sale  be 
confirmed  at  the  said  bids,  and  the  said  estate  of  the  lunatic 
therein  be  conveyed  to  the  said  bidders.  Held :  The  sale  is 
lawful. 

Section  2618. 
In  the  case  of  Garland  vs.  Loving,  1  Band.,  896,  here  referred 
to,  there  is  nothing  which  can  be  of  use  in  a  work  of  this  char- 
acter. 

In  the  case  of  Talley  et  als.  vs.  Starke's  Administratrix  et  als., 
6  Grat.,  339,  decided  October,  1849,  it  was  held:  In  a  suit  in 
equity  by  the  guardian  of  infants  for  the  sale  of  their  real  estate, 
a  guardian  ad  litem  for  the  infants  may  be  appointed  at  rules. 

In  the  case  of  Ewing's  Administrator  et  als.  vs.  Ferguson's 


Citations  to  the  Code  of  Virginia.  365 

AdmAnistrator  et  ah.,  33  Grat.,  548,  decided  September,  1880, 
it  was  held :  The  heirs  of  E.  being  infants,  though  their  guar- 
dian was  a  party  and  answered,  they  were  entitled  to  be  de- 
fended by  a  guardian  ad  litem,  and  although  one  was  appointed 
for  them,  and  there  was  a  paper  purporting  to  be  an  answer 
found  among  the  papers  of  the  case,  yet  as  it  did  not  appear 
that  it  had  been  filed,  it  was  error  to  decree  a  sale  of  the  infant's- 
land  without  an  answer  filed  by  the  guardian  ad  litem. 

Section  2620. 

In  the  case  of  Garland  vs.  Loving^  1  Rand.,  396,  here  referred 
to,  there  is  nothing  to  guide  one  as  to  the  principle  on  which 
this  section  is  based. 

See  the  case  of  Faulkner  et  als.  vs.  Davis  et  als.,  18  Grat., 
651,  ante.  Section  2616. 

See  the  case  of  Palmer  et  als.,  vs.  Garland's  Committee  et  als.,. 
81  Va.,  444,  cited  a7ite.  Section  2616. 

In  the  case  of  Palmer  et  als.  vs.  Garland's  Committee  et  als., 
81  Va.,  444,  decided  February  11,  1886.  H.,  committee  of  G., 
a  female  lunatic,  institutes  a  suit  under  Code  1873,  Chapter  124, 
to  sell  her  contingent  estate  in  lands,  and  conducts  it  in  the 
proper  manner,  and  against  the  proper  parties,  and  adduces  the 
proper  evidence,  in  every  respect  in  accordance  with  the  require- 
ments of  the  statute,  and  in  his  bill  he  presents  the  bids  of  cer- 
tain parties  who  already  owned  other  contingent  interest  in  the 
same  lands.  The  court  deeming  that  the  interest  of  the  lunatic 
will  be  promoted,  and  the  rights  of  no  one  violated  by  the  sale 
of  her  said  contingent  estate,  decrees  that  the  proposed  sale  be 
confirmed  at  the  said  bids,  and  the  said  estate  of  the  lunatic 
therein  be  conveyed  to  the  said  bidders.  Held :  The  sale  is 
lawful. 

Section  2621. 

In  the  case  of  Redd  vs.  Jo7ies  et  als.,  30  Grat.,  123,  decided 
April  4,  1878,  it  was  held :  In  a  writ  by  a  guardian  for  the  sale 
of  his  ward's  lands,  a  decree  is  made  appointing  commissioners 
to  sell  it,  and  in  October,  1859,  they  sell  the  land  at  public  auc- 
tion, when  the  guardian  becomes  the  purchaser  at  a  fuU  price, 
makes  the  cash  payment,  and  executes  his  two  bonds,  with  sure- 
ties, for  the  deferred  payments.  All  the  papers  in  the  case  were 
destroyed  by  the  Union  forces  during  the  war,  except  the  order- 
book  of  the  court,  extending  from  1858  to  1863,  and  the  two 
bonds  of  the  purchaser,  which  were  found  among  the  scattered 
papers  in  the  office.  The  purchaser  goes  into  possession  of  the 
land,  which  he  has  held  ever  since  without  question.  Though 
the  order-book  does  not  contain  a  decree  confirming  the  sale, 
yet  no  question  having  been  made  as  to  the  purchaser's  title 
down  to  1873,  when  suit  is  brought  by  the  commissioner  and  the 


366  Citations  to  the  Code  of  Virginia. 

parties  entitled  to  the  proceeds  against  the  purchaser's  assignee 
in  bankruptcy,  and  the  sureties  of  the  purchaser  to  enforce 
the  payment  of  the  purchase-money  of  the  land  which  had  fal- 
len very  miich  in  value,  the  sale  will  be  held  to  be  valid,  and 
the  sureties  in  the  bond  held  liable. 

Section  2622. 
In  the  case  of  Talley  et  als.  vs.  Starke's  Administratrix  et  als., 
6  Grat.,  339,  it  was  held:  It  is  necessary,  in  the  decree  for  the 
sale  of  the  land,  to  direct  that  the  guardian  shall  give  security, 
under  Section  20  of  the  act,  1  Kev.  Code,  Chapter  108,  pages 
409-10. 

Section  2626. 

In  the  case  of  Yaugfin  vs.  Jones  et  als.,  23  Grat.,  444,  decided 
March,  1873,  The  real  estate  of  R.,  a  female  infant,  is  sold 
under  decrees  of  court  and  turned  over  to  V.,  her  guardian, 
upon  his  giving  bond  and  security  for  the  faithful  accounting 
therefor.  In  1862  R.  married  B.,  to  whom  Y.  paid  over  the 
estate  upon  his  giving  security  to  indemnify  V. ;  and  in  1864  R. 
died,  still  under  the  age  of  twenty-one  years,  leaving  a  child 
which  survived  her  but  a  few  hours,  and  her  husband  who 
survived  the  child.  Held :  The  proceeds  of  the  real  estate  of 
E.  descended  as  real  estate  to  her  child,  subject  to  a  life  estate 
in  her  husband ;  and  upon  the  death  of  the  child  it  passed  as 
real  estate  to  the  heirs  of  the  child  on  the  part  of  the  mother. 

In  the  case  of  RinJcer  and  Wife  vs.  Streit,  33  Grat.,  663,  de- 
cided September,  1880.  The  income  of  the  estate  of  M.,  the 
ward,  being  insufficient  for  her  support  and  education,  her 
guardian,  S.,  expended  the  principal  of  the  proceeds  of  the  sale 
of  her  real  and  personal  estate  upon  her,  and  upon  the  settle- 
ment of  his  account  after  the  termination  of  his  guardianship, 
he  was  still  in  advance  to  his  ward.  Held :  The  guardian  was 
not  authorized  to  use  the  principal  of  the  ward's  real  estate  for 
the  support  and  education  of  his  ward ;  and  the  court  of  equity 
settling  his  account  could  not  render  the  expenditure  valid  by  its 
decree. 

Chapter  123,  Section  13,  Code  of  1873,  which  authorizes  the 
chancery  court  in  certain  cases  to  allow  the  application  of  the 
real  estate  to  the  maintenance  and  education  of  a  ward,  does 
not  authorize  the  court  to  sanction  such  application  already 
made  by  the  guardian ;  but  the  order  of  the  court  must  be  first 
made  by  the  guardian  in  order  to  authorize  it. 

The  guardian  may  apply  the  principal  of  the  ward's  personal 
estate  to  her  maintenance  and  education,  in  a  proper  case,  and 
if  the  court  would  have  authorized  it  upon  application  to  the 
court  before  it  was  done,  the  court  may  and  will  sanction  it  upon 
settlement  of  his  accounts. 


Citations  to  the  Code  of  Virginia.  367 

In  the  case  of  Hurt  vs.  Jones  and  Wife,  75  Va.  Reports,  341, 
decided  March  10,  1881,  it  was  held,  p.  350-51 :  The  one-sixth 
interest  of  the  wife,  H.,  passed  by  the  sale  in  the  suit  for  parti- 
tion, and  her  interest  thereto  was  her  share  of  the  purchase- 
money  retained  by  H.  under  the  decree  of  the  court.  Qucere  : 
Whether  under  the  amended  act  of  February  28,  1868,  it  passes 
to  heir  at  law  ? 

In  the  case  of  Turner  vs.  Dawson  et  als.,  80  Va.,  841,  decided 
October  8,  1885,  it  was  held :  Where  court  of  equity  causes 
land  to  be  sold  for  partition,  it  leaves  it  to  the  party  entitled  to 
the  proceeds  to  designate  whether  it  will  hold  them  as  person- 
alty or  as  realty.  And  when,  for  any  reason,  that  party  is  incap- 
able of  making  such  designation,  the  court  vfWi  hold  them  sub- 
ject to  all  the  incidents  of  realty 


TITLE  XXXIV. 
CHAPTER    CXVIII. 

Section  2629. 
See  the  case  of  Snaveley  vs.  Harkrader  et  als.,  29  Grat.,  112, 
cited  ante,  Section  2609. 

Section  2631. 

See  the  case  of  Snaveley  vs.  Harkrader  et  als.,  29  Grat.,  112, 
cited  ante,  Section  2609. 

In  the  case  of  Coltrane  vs.  Norrell,  30  Grat.,  434,  decided 
July,  1878,  it  was  held  :  The  trust  deed  provides  that  D.  shall 
have  the  interest  and  so  much  of  the  principal  of  the  trust  fund 
as  shall  be  necessary  for  her  support.  If  she  dies  in  the  lifetime 
of  her  husband  she  may  dispose  of  the  whole  of  the  trust  fund 
by  her  will,  and  if  she  shall  survive  him  it  shall  be  hers  abso- 
lutely. She  may  have  the  trust-fund  removed  to  Missouri,  and 
vested  in  a  trustee  appointed  in  that  State  to  receive  and  hold 
it  on  the  same  trusts. 

Section  2632. 

In  the  case  of  toltrane  vs.  Norrell,  30  Grat.,  434,  it  was  held, 
Page  449 :  It  is  too  late  to  object  to  the  transfer  of  trust  funds,  on 
the  ground  of  informality  in  the  proceedings  in  the  appelate  court. 


TITLE  XXXV. 
CHAPTER  CXIX. 

Section  2636. 
In  the  case  of  Fleming  vs.  Boiling,  3  Call,  75   (2d  edition, 
66),  decided  October  26,  1801.     The  testator  devised  that  his 


368  Citations  to  the  Code  of  Vikginia. 

book  be  given  up  to  A.,  and  that  he  shall  receive  all  the  debts 
due,  and  pay  all  the  testator  owes.  Held :  This  is  an  appointment 
of  A.  to  perform  the  duties  of  executor,  but  does  not  entitle  him 
to  the  surplus  of  the  debts  due  the  testator,  nor  does  it  discharge 
him  from  a  debt  which  he  himself  owed. 

In  the  case  of  Monroe  {Executor  of  Jones)  vs.  James,  4  Munf., 
194,  decided  January  20, 1814,  it  was  held :  A  sale  of  a  slave  be- 
longing to  the  estate  of  a  testator,  by  a  person  named  as  one  of 
the  executors,  but  who,  at  the  time  of  such  sale,  had  not  quali- 
fied, and  afterwards  died  without  having  qualified,  by  giving 
bond  and  security  is  void  against  the  executor  who  did  qualify,, 
notwithstanding  such  sale  was  made  for  valuable  consideration, 
and  at  a  time  when  there  was  no  qualified  executor. 

In  the  case  of  Mills  et  als.  vs.  Mills'  Executors,  28  Grat., 
442,  decided  March  22,  1877,  it  was  held,  p.  491 :  Where  two  of 
three  executors  qualify,  they  may  act,  and  upon  the  qualifica- 
tion of  the  third  he  is  entitled  to  act  as  to  the  estate  not  yet 
administered. 

Section  2637. 

In  the  case  of  Burnley's  Administrator  vs.  Duke  et  als.,  1 
Rand.,  108,  decided  March,  1822,  it  was  held  :  Where  a  testator 
leaves  two  wills,  one  in  Virginia  and  the  other  in  England,  the 
English  will  being  the  last  in  date,  and  his  executor  takes  out 
letters  of  administration  on  the  posterior  will  in  England,  this 
does  not  ipso  facto  repeal  letters  of  administration  which  have 
been  granted  in  Virginia  on  the  first  will ;  but  the  English  ex- 
ecutor must  first  qualify  by  giving  bond  and  security  as  the  law 
directs. 

In  the  case  of  Thompson  vs.  Meek,  7  Leigh,  419,  decided 
April,  1836.  A  court  of  probate  receives  proof  of  a  will  and 
admits  it  to  record,  and  six  months  afterwards  grants  adminis- 
tration with  the  will  annexed ;  and  it  does  not  appear  by  the 
record  of  the  court  of  probate  that  the  executors  named  in  the 
will  had  ever  renounced.  Held :  The  failure  to  state  such  re- 
nunciation upon  the  record  does  not  make  the  grant  of  adminis- 
tration absolutely  void. 

In  a  suit  in  equity  by  devisees  against  an  administrator,  with 
the  will  annexed,  and  a  purchaser  from  him,  the  court  will  pre- 
sume the  grant  of  administration  to  be  regular,  unless  its  regu- 
larity be  drawn  in  question  by  the  pleadings.  If  the  grant  of 
administration  with  the  will  annexed  be  alleged  to  be  irregular, 
upon  the  ground  that  the  executor  had  not  renounced,  the  fact 
of  such  renunciation  may  be  established  by  parol  evidence. 

In  the  case  of  Gibson  vs.  Beckham  et  als.,  16  Grat.,  321,  de- 
cided November  18,  1862.  A  will  is  offered  for  probate  in  the 
proper  court,  and  it  is  proved  by  one  of  three  subscribing  wit- 
nesses, which  is  ordered  to  be  certified.     At  the  next  term  of 


J 


Citations  to  the  Code  of  Virginia.  369 

the  court  the  executors  renounce,  and  the  widow  relinquishes 
her  right  to  administer,  and  administration  c.  t.  a.  is  com- 
mitted to  G.,  who  executes  his  official  bond,  with  sureties,  in 
the  proper  form.  Held :  The  bond  is  valid,  and  binds  the  ad- 
ministrator and  his  sureties  for  his  default. 

When  a  court  has  cognizance  of  the  subject-matter,  its  judg- 
ment, though  it  may  be  erroneous,  is  not  void.  It  is  binding 
until  it  is  set  aside  or  reversed,  and  cannot  be  questioned  inci- 
dentally; acts  done  and  bonds  taken  under  it  bind  the  ob- 
ligors. 

Where  a  court  or  officer  has  authority  or  capacity  to  take  a 
bond,  and  makes  a  mistake  by  omitting  some  condition  pre- 
scribed, or  inserting  a  condition  not  authorized  or  illegal,  unless 
the  statute,  by  express  words  or  necessary  implication,  makes 
it  wholly  void,  the  bond  is  not  void;  the  good  shall  not  be 
vitiated  by  the  bad ;  and  the  bond  may  be  sued  on,  so  far  as  the 
conditions  are  good,  as  a  statutory  bond. 

When  the  court  has  cognizance  of  the  subject-matter,  or  ca- 
pacity to  take  a  bond,  and  takes  a  bond  which  on  its  face  is 
valid,*  but  contains  a  recital  of  facts  necessary  to  its  validity,  as 
in  the  cases  of  the  election  and  induction  into  office  of  a  sheriflf, 
the  presence  of  the  justices  named  as  obligees,  and  the  like, 
the  obligors  shall  be  estopped  from  denying  the  truth  of  such 
reaitals. 

Section  2639. 

In  the  case  of  Cutchins  vs.  Wilkinson,  1  Call,  1,  decided  April 
22,  1797.  W.  died  intestate,  leaving  a  widow  and  three  chil- 
dren ;  the  children  died  infants  and  intestate  in  the  lifetime  of 
their  mother;  the  widow  administered  on  the  estate  of  her  hus- 
band; died,  leaving  a  will  appointing  executors.  Held:  The 
brother  of  the  widow  was  entitled  to  the  administration  de  bonis 
non  of  the  husband  in  preference  to  W.'s  brother.  But,  it  seems, 
had  the  executors  of  the  widow  applied,  the  administration  would 
have  been  committed  to  them. 

In  the  case  of  McCandlish  vs.  Hopkiiu,  6  Call,  208,  decided 
December,  1814,  it  was  held:  A  creditor  since  the  act  of  1792 
has  no  preference  over  any  other  person  in  an  application  for 
administration  upon  an  intestate's  estate ;  but  every  case  must 
depend  upon  its  own  circumstances. 

Under  a  power  of  attorney  authorizing  a  person  to  execute 
an  administration  bond  for  the  person  giving  the  power,  the  at- 
torney may  be  allowed  to  execute  the  bond  accordingly. 

In  the  case  of  Hendren  vs.  Colgin,  4  Munf.,  231,  decided 
March  12,  1814,  it  was  held :  Upon  the  death  of  a  husband, 
who  survived  his  wife,  and  administered  upon  her  estate,  his 
executor  (or,  it  seems,  his  administrator)  is  entitled  to  be  ad- 
ministrator de  bonis  non  of  the  wife,  in  preference  to  her  next  of 
24 


370  Citations  to  the  Code  of  Virginia. 

kin.  It  seems,  too,  that  his  executor  is  entitled,  in  preference 
to  his  residuary  legatee. 

In  the  case  of  Bray  vs.  Dungeon,  6  Munf.,  132,  decided  Feb- 
ruary 24, 1818,  it  was  held :  Where  the  personal  property  of  the 
wife  is  so  settled  by  a  deed  executed  before  the  marriage,  and 
duly  recorded,  that  upon  her  dying  intestate  in  her  husband's 
lifetime,  the  trustee  is  to  convey  the  same  to  her  legal  heirs,  her 
nearest  blood  relation  is,  in  such  event,  entitled  to  the  adminis- 
tration of  her  estate  in  preference  to  her  husband. 

In  the  case  of  Cottorn  vs.  Cottom,  4  Rand.,  192,  decided  May, 
1826,  it  was  held :  Wherefore  two  successive  applications  are 
made  to  a  county  court  for  administration,  and  rejected,  appeals 
taken  to  the  circuit  court  from  both  decisions,  and  the  judg- 
ments of  the  county  court  affirmed;  upon  an  appeal  to  this 
court  on  the  second  case,  the  court  cannot  reverse  the  first 
judgment  and  grant  administration. 

In  the  case  of  Commonwealth  vs.  Hudgin,  2  Leigh,  248,  de- 
cided June,  1830.  A  resident  of  Kentucky  dies  intestate  there, 
having  no  estate  in  Virginia,  but  a  claim  on  this  Commonwealth 
for  money.  Held :  The  circuit  court  of  Henrico  county,  wherein 
is  the  seat  of  government,  has  jurisdiction  to  grant  administra- 
tion of  such  decedent's  estate. 

In  the  case  of  Haxall  vs.  Lee,  2  Leigh,  267,  decided  June, 
1830.  A  person  dies  intestate  in  1825  ;  and  in  1830  a  distribu- 
tee and  a  creditor  come,  at  the  same  time,  to  ask  administration. 
Held :  The  court  has  no  discretion  to  choose  between  them,  but 
must  prefer  the  distributee. 

In  the  case  of  Ex  Parte  Barker,  2  Leigh,  719,  decided  June, 
1830,  it  was  held :  Letters  of  administration  granted  by  a  court 
having  no  jurisdiction  to  grant  them  are  merely  void ;  and  the 
court  ha^dng  competent  jurisdiction  to  grant  the  administration 
may  proceed  to  grant  it,  though  the  letters  of  administration 
before  improperly  granted  have  not  been  revoked. 

In  the  case  of  Ex  Parte  Lyons,  2  Leigh,  761,  decided  Novem- 
ber, 1830,  it  was  held:  When  administration  of  a  decedent's 
estate  has  been  duly  granted  by  any  court  of  competent  juris- 
diction, that  same  court  only,  upon  the  death  of  the  adminis- 
trator, has  the  jurisdiction  to  grant  administration  de  bonis  non. 

In  the  case  of  Thornton  vs.  ^Y^nston,  4  Leigh,  152,  decided 
January,  1833.  There  may  be  a  valid  renunciation  of  the  ex- 
ecutorship of  a  will,  by  matter  in  pais.  An  executrix  declines 
to  qualify  as  such,  and  agrees  that  administration  with  the  will 
annexed  shaU  be  granted  to  her  daughter,  reserving  her  right  to 
quaUfy  after  her  daughter's  death.  Held :  This  renunciation  of 
the  executorship  is  absolute  and  perpetual,  and  cannot  be  re- 
tracted after  the  death  of  the  administratrix,.nor  does  the  nomi- 
nation of  the  executrix  in  the  will  give  her  any  preferable  right 


Citations  to  the  Code  of  Yirginia.  371 

to  the  administration  de  hours  non  with  the  will  annexed.  The 
person  entitled  to  the  estate  of  a  decedent  is  entitled  to  the 
administration.  A  testator  by  his  will  gives  personal  property 
to  his  wife,  and  she  takes  the  provision  made  for  her  by  the  will. 
Held :  She  is  entitled  to  no  part  of  an  undisposed  of  residuum 
as  distributee  of  her  husband,  being  excluded  from  distribution 
by  the  statute,  1  Rev.  Code,  Chapter  104,  Section  26,  and  in  a 
contest  between  the  widow  and  a  distributee,  for  administration 
with  the  will  annexed,  the  distributee  is  entitled  to  it. 

In  the  case  of  Charles  vs.  Charles,  8  Grat.,  486,  decided  Jan- 
uary, 1852,  it  was  held:  If  the  husband  had  relinquished  his 
marital  rights  to  his  wife's  property,  he  is  not  entitled  to  ad- 
ministration upon  her  estate. 

Section  2641. 

In  the  case  of  Jones  vs.  Hohson,  2  Rand.,  483,  decided  June 
11,  1824,  it  was  held :  Where  a  suit  is  brought  against  an  exec- 
utor and  his  securities,  and  the  executor  confesses  assets,  it  is 
competent  for  a  court  of  equity  to  decree  immediately  against 
the  executor,  and  that  liberty  should  be  reserved  to  the  creditor 
to  proceed  against  the  sureties  by  motion  if  it  should  become 
necessary. 

The  sureties  of  an  executor  are  not  responsible  for  the  pro- 
ceeds of  land  sold  by  them  under  the  will. 

The  sureties  of  an  executor  are  not  responsible  for  the  acts  of 
bis  executor  in  the  administration  of  the  estate  of  the  first 
testator. 

In  the  case  of  Burnett  et  als.  vs.  Harwell  et  als.,  etc.,  3  Leigh, 
89,  decided  October,  1831,  it  was  held  :  Under  the  former  pro- 
visions of  the  statute  concerning  executors'  bonds,  the  sureties 
of  an  executor  are  not  responsible  for  the  proceeds  of  land  sold 
by  him  under  a  power  in  the  testator's  will. 

In  such  an  action  the  declaration  must  aver  that  the  assets 
came  to  his  hands,  and  the  devastavit  thereof;  and  if  the 
declaration  contain  no  such  averment,  it  is  bad  on  general  de- 
murrer ;  per  Tucker,  P. 

In  the  case  of  Morrow^ s  Administrators  vs.  Peyton  s  Admin- 
istrator et  als.,  8  Leigh,  54,  decided  February,  1837.  "Where 
two  administrators  execute  a  joint  administration  bond,  each 
is  a  surety  for  the  other;  and  if  one  commit  a  devastavit  the 
other  is  chargeable,  but  only  as  surety,  and  pari  passu  with 
the  other  sureties  in  the  bond ;  dissentient  Brook,  J.,  who  held 
that  for  a  devastavit  by  one  administrator  the  other  is  not  re- 
sponsible, either  as  principal  or  surety. 

Where  the  estate  of  one  decedent  is  indebted  to  that  of  the 

L other,  and  the  same  person  is  administrator  of  both,  and  wastes 
assets  of  the  debtor's  estate  which  he  was  bound,  but  has  failed, 
to  pay  over  to  the  creditor's  estate,  the  sureties  for  his  due  ad- 
■ 


372  Citations  to  the  Code  of  Virginia. 

ministration  of  the  creditor's  estate  are  liable  for  such  default 
and  devastavit. 

After  the  death  of  an  executor  who  had  qualified  as  such,  the 
court  grants  administration  of  the  testator's  unadministered 
estate,  but  the  bond  taken  from  the  administrator  is  in  the  form 
of  a  bond  for  administration  de  bo7iis  non  of  an  intestate,  not  in 
the  form  of  a  bond  for  administration  de  honis  non  with  the  will 
annexed  of  a  testator.     Held :  The  bond  is  void. 

An  administrator  makes  a  verbal  promise  to  the  agent  em- 
ployed to  collect  a  debt  from  the  estate,  that  if  he  will  pay  the 
amount  to  his  principal,  the  administrator  will  repay  it  to  him 
with  interest ;  the  agent  accordingly  pays  his  principal  the  debt, 
and  the  administrator  afterwards  refunds  to  the  agent  the  sum 
paid  with  interest.  Held :  The  payment  by  the  agent  was  pay- 
ment by  the  administrator,  for  which  he  is  entitled  to  credit  at 
the  date  thereof,  whatever  be  the  time  at  which  the  amount  was 
paid  to  the  agent. 

In  the  case  of  Boyd^s  Executor  vs.  Boyd^s  Heirs,  3  Grat., 
113,  decided  July,  1846,  it  was  held :  Co-executors  joining  in 
the  same  executorial  bond  are  sureties  for  each  other. 

In  the  case  of  Atkinson  vs.  Christian,  3  Grat.,  449,  decided 
January,  1847,  it  was  held :  By  the  statute  it  was  intended  that 
the  court  granting  administration  on  an  estate,  or  admitting  an 
executor  to  qualify  as  such,  should  have  a  discretion  in  regard 
to  the  amount  of  the  security.  And  the  general  rule  of  practice 
requiring  security  in  double  the  estimated  value  of  the  estate  is 
a  proper  exercise  of  that  discretion. 

The  other  good  security  authorized  to  be  required  is  not  to 
be  in  lieu  of,  or  by  way  of  substitution  for,  the  former  security, 
but  in  addition  thereto.  And  the  former  securities  are  not 
thereby  exonerated. 

In  determining  the  amount  for  which  the  other  good  security 
ought  to  be  required,  regard  ought  to  be  had  to  the  value  of  the 
estate  remaining  unadministered,  including  any  accessions  there- 
to beyond  the  original  estimate  thereof,  and  to  the  extent  of  the 
available  security  still  furnished  by  the  original  bond. 

In  the  case  of  Hutcheson,  etc.,  vs.  Pigg,  8  Grat.,  220,  decided 
October,  1851,  it  was  held:  The  official  bond  of  an  executrix 
only  binding  the  obhgors  for  the  due  administration  of  the  per- 
sonal estate,  the  sureties  are  to  no  extent  responsible  for  rents 
and  profits  of  the  real  estate. 

All  the  sureties  in  the  official  bond  of  an  executrix  should  be 
parties  to  a  suit  by  legatees  for  distribution,  or  a  sufficient 
reason  should  be  shown  for  faiUng  to  make  them  parties,  be- 
fore a  decree  is  made  against  one  of  them. 

In  the  case  of  Reherd  et  als.  vs.  Long  et  als.,  77  Va.,  839,  de- 
cided October  18, 1883,  it  was  held,  p.  845 :  In  the  absence  of  evi- 


Citations  to  the  Code  of  Virginia.  373 

dence  directly  to  the  contrary,  it  must  be  presumed  that  the 
official  bond  of  the  executor  and  his  sureties  was  in  the  usual 
form,  with  a  condition  "for  the  faithful  discharge  by  him  of  the 
duties  of  the  trust." 

As  the  law  aforetime  stood,  when  Jones  vs.  Hobson,  2  Rand., 
483,  was  decided,  the  sureties  could  not  have  been  held  liable 
for  the  land  payments  collected  by  the  executor,  but  as  the  law 
stood  when  the  bond  was  executed  and  stands  now,  the  sureties 
are  liable  therefor,  and  should  have  not  been  released. 

Section  2642. 

In  the  case  of  Bryce  vs.  Stevenson  et  als.,  2  Rand.,  438,  de- 
cided May  14,  1824,  it  was  held :  When  an  executor  who  has 
been  permitted  to  qualify  without  security  brings  a  suit  in  chan- 
cery to  reduce  into  possession  the  funds  of  his  testator,  the 
court  may,  in  its  discretion,  require  security  before  it  will  lend 
its  aid. 

In  the  case  of  Fairfax  vs.  Fairfax  {Exectitor),  7  Grat.,  36,  de- 
cided May  11,  1850,  it  was  held:  To  the  judgment  of  a  county- 
court  refusing  to  permit  a  person  named  as  executor  in  a  will  to 
qualify  without  giving  security,  an  appeal,  demandable  as  of 
right,  lies  to  the  circuit  court. 

A  testator  appointed  his  wife  and  son  executrix  and  execu- 
tor, and  expressed  his  confidence  in  them,  directing  that  they 
should  be  permitted  to  qualify  without  giving  security.  Some 
years  afterwards  he  added  a  codicil,  by  which  he  says,  "  I  further 
appoint  J.  H.  executor  to  the  within  will  with  my  wife  and  son. 
Held:  J.  H.  is  not  entitled  to  qualify  without  giving  security. 
Quaere  :  If  in  such  case  parol  testimony  is  admissible  to  show 
the  intention  of  the  testator  ? 

Section  2645. 

In  the  case  of  Cooke  vs.  Harrison,  3  Rand.,  494,  decided 
October,  1825,  it  was  held :  A  sheriff,  to  whom  the  estate  of  a 
decedent  is  committed,  is,  to  all  intents  and  purposes,  an  ad- 
ministrator under  the  present  law,  whatever  he  may  have  been 
previously ;  and,  therefore,  is  responsible  for  the  due  adminis- 
tration of  the  estate  after  his  term  of  office  as  sheriff  expires. 

Where  the  representative  of  a  sheriff  is  sued  on  account  of 
an  estate  committed  to  his  hands,  and  it  appears  that  his  deputy 
(wlio  is  also  sued)  had  the  entire  management  of  the  estate,  the 
court  may  decree  against  the  deputy  in  the  first  instance,  if  as- 
sented to  by  the  plaintiff,  reserving  liberty  to  him  to  resort  to 
the  court  for  ulterior  decrees  against  the  other  parties ;  but  if 
such  consent  be  not  given,  it  is  the  duty  of  the  court  to  decree 
between  the  defendants  in  order  to  throw  the  burden  on  the 
persoh  ultimately  liable. 


374  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Dahnexfs  4-dmwistrator  vs.  Smiih's  Legatee,  5 
Leigh,  13,  decided  January,  1834.  Administration  of  a  de- 
cedent's estate  cum  testamento  annexo  was  committed  to  a  sheriff 
under  the  statute,  and  the  administration  was  conducted  by  his 
deputy,  and,  for  the  most  part,  after  the  sheriff's  term  of  office 
expired.  Held:  The  administration  did  not  devolve  on  the 
sheriffs  successor,  but  he  was  bound  to  complete  it,  and  he  and 
his  official  sureties  are  answerable  for  his  deputies  after,  as  well 
as  before,  the  expiration  of  his  office. 

In  a  suit  in  chancery  by  the  legatees  against  the  personal 
representatives  of  sheriff,  of  his  deputy,  and  of  his  official  sure- 
ties, decree  first  against  the  representatives  of  the  sheriff  and  of 
the  deputy  for  the  balance  due ;  and  Jl.  fa.  on  the  decree  returned 
nulla  bona  testatoi^is.  Held  :  No  necessity  to  direct  accounts  of 
administration  by  their  representatives,  to  ascertain  whether 
they  have  committed  a  devastavit,  before  proceeding  to  decree 
against  the  sheriffs  sureties.  Nor  necessary  to  make  the  heirs 
of  the  sheriff  and  the  deputy  sheriff  parties  to  inquire  whether 
any  real  estate  descended  to  them  before  proceeding  to  decree 
against  the  sureties.  Nor  necessary,  two  of  the  sureties  having 
died  insolvent,  to  order  accounts  of  administration  of  their  es- 
tates before  decreeing  against  the  solvent  sureties. 

Decree  being  first  against  the  representatives  of  the  sheriff 
and  his  deputy,  with  liberty  to  apply  to  court  for  decree  against 
the  representatives  of  the  sureties,  the  executor  of  one  of  the 
sureties  dies,  and  then,  without  reviving  the  suit  against  his  ad- 
ministrator de  honis  non,  notice  is  given  to  him  of  a  motion  for 
a  decree  against  him,  and  upon  such  notice  the  decree  is  made 
against  him.     Held :  The  proceeding  is  regular. 

In  the  case  of  Douglas  {Executor)  vs.  Stumps  et  als.,  5  Leigh, 
392,  decided  May,  1834.  D.  is  commissioned  sheriff  of  L. 
county  in  July,  1805,  but  receives  no  commission  in  1806  for  a 
second  year  of  shrievalty,  and  yet  continues  to  act  as  sheriff  for 
the  second  year  of  1806-7 ;  the  estate  of  a  decedent  is  commit- 
ted to  him  by  order  of  court  during  the  second  year.  Held: 
The  sheriff,  though  not  regularly  commissioned,  was  sheriff  until 
his  successor  was  appointed,  and  he  is  responsible  for  the  ad- 
ministration of  the  decedent's  estate  by  his  deputy. 

In  the  case  of  Moshy  {Administrator)  et  als.  vs.  Mosby  {Ad- 
ministrator), 9  Grat.,  584,  decided  February  7, 1853,  it  was  held: 
One  of  the  executors  having  died,  and  the  other  having  been 
removed,  and  the  administration  c.  t.  a.  having  been  committed 
to  the  sheriff,  he  was  authorized  as  such  administrator  to  exe- 
cute the  power  and  trust,  and  is,  therefore,  bound  to  account 
for  the  rents  and  profits ;  the  case,  though  not  within  the  let- 
ter of  the  statute,  being  within  its  spirit  and  meaning.  The 
rents  and  profits  of  the  land  having  been  received  by  the  dfeputy 
of  the  high  sheriff,  he  is  responsible  for  them. 


\'l 


Citations  to  the  Code  of  Virginia.  375 

In  the  case  of  Hutcheson  vs.  Pnddy,  12  Grat.,  85,  decided 
February  12,  1855,  it  was  held  :  If  the  county  court  commits  an 
estate  to  the  sheriff  for  administration  before  the  expiration  of 
three  months  from  the  death  of  the  testator  or  intestate,  the  act 
is  not  void,  but  voidable. 

An  estate  having  been  committed  to  the  sheriff,  the  county 
court  cannot  grant  the  administration  to  a  distributee  without 
notice  to  the  sheriff  of  the  application. 

It  is  not  imperative  on  the  county  court  to  grant  administra- 
tion to  a  distributee  after  the  estate  has  been  committed  to  a 
sheriff;  but  there  is  a  legal  discretion  in  the  court. 

Section  2646. 

In  the  case  of  Dickinson  {^Administrator,  etc.,)  vs.  McCraw, 
4  Rand.,  158,  decided  March,  1826,  it  was  held :  The  certificate 
of  probate,  or  of  administration,  granted  by  a  court  of  this  State, 
and  attested  by  the  clerk,  will  enable  the  executor  or  adminis- 
trator to  act,  and  may  be  given  in  evidence  in  any  court  of  this 
Commonwealth . 

Section  2647. 

The  reference  to  2  H.  &  M.,  361,  cannot  be  ascertained,  as 
the  paging  of  that  book  is,  from  350  to  370,  in  complete  confu- 
sion, and  nothing  appears  there  on  this  section. 

In  the  case  of  Rogers  (Administrator)  vs.  Chandler  (Adminis- 
trator), 3  Munf.,  65,  decided  January  10,  1811,  it  was  held: 
Upon  issue  joined  on  plea  of  fully  administered,  a  verdict  find- 
ing in  general  terms  "  the  issue  for  the  plaintiff,  and  that  assets 
equal  to  the  claim  of  the  plaintiff  came  to  the  hands  of  the  de- 
fendant," is  uncertain  and  insufficient.  It  should  set  forth  with 
sufficient  certainty  what  portion  of  the  assets  which  came  to  the 
defendant's  hands  was  unadministered  at  the  time  of  suing  out 
the  plaintiff's  writ.  An  appraisement  of  a  decedent's  estate, 
though  not  signed  by  the  executor  or  administrator,  and  there- 
fore not  to  be  received  as  an  inventory,  is  admissible  as  prim,a 
facie  evidence  of  the  value  of  the  estate. 

In  the  case  of  Park's  Administrator  vs.  Rucker,  5  Leigh,  149, 
decided  March,  1834,  it  was  held :  An  inventory  not  signed  by 
an  administrator  is  no  inventory  as  to  him,  and  so  no  ground 
on  which  to  charge  him. 

Section  2648. 

In  the  case  of  Vandridge,  etc.,  vs.  Minge,  4  Rand.,  397,  de- 
cided July,  1826,  it  was  held :  It  is  the  duty  of  an  executor  or 
administrator  to  apply  the  assets  of  the  estate  not  necessary  for 
the  payment  of  debts  to  the  exoneration  of  the  real  estate  of  his 
testator  or  intestate  which  may  be  under  mortgage. 

In  the  case  of  Colernan  (Administrator  de  bonis  non  Wemick) 


376  Citations  to  the  Code  op  Yieginia. 

vs.  McMurdo  db  Prentis,  5  Kand.,  51,  decided  March,  1827,  it 
was  held :  An  administrator  de  bonis  nan  cannot  sue  the  repre- 
sentative of  a  former  executor  or  administrator,  either  at  law 
or  in  equity,  for  assets  wasted  and  converted  by  the  first  execu- 
tor or  administrator ;  but  such  suit  may  be  brought  directly  by 
creditors,  legatees,  or  distributees. 

In  the  case  of  Montis  {Administrator)  vs.  Morris  {Adminis- 
trator) et  als.,  4  Grat.,  294,  decided  January,  1848,  it  was  held : 
An  administrator  not  having  settled  his  accounts  is  not  entitled 
to  commissions.  In  a  suit  by  an  administrator  de  honis  non 
against  the  representative  of  the  first  administrator  for  the  set- 
tlement of  the  first  administrator's  accounts  of  his  administra- 
tion, it  is  irregular  to  decree  payment  to  the  administrator  de 
honis  non,  but  the  distributees,  being  party  to  the  suit  and  not 
complaining,  so  that  a  payment  to  the  administrator  de  honis 
non  would  be  a  valid  discharge  to  the  representative  of  the  first 
administrator,  he  will  not  be  heard  to  complain  of  the  irregularity 
in  the  appellate  court. 

At  the  close  of  an  administration  account,  the  interest  due 
from  the  administrator  is  not  to  bear  interest. 

In  the  case  of  Clarke  vs.  Wells  {Administrator),  6  Grat.,  475, 
decided  January,  1850.  The  sale  by  an  administrator  of  his 
intestate's  effects,  though  upon  a  credit,  must  be  treated  at  law 
as  a  conversion  thereof.  There  is  an  exception  to  this  rule  in 
equity  when,  upon  a  settlement  between  proper  parties  of  the 
administration  of  the  administrator,  it  appears  that  the  collec- 
tion of  such  sale  bonds  by  his  personal  representative  is  un- 
necessary for  the  reimbursement  or  indemnity  of  his  dece- 
der.t's  estate,  and  may  therefore  be  confided  as  unadministered 
assets  to  the  administrator  de  ho?iis  non. 

W.,  administrator  of  C,  sells  assets  on  a  credit,  and  dies  in- 
debted to  his  intestate's  estate.  A  purchaser  at  the  sale  quali- 
fies as  administrator  de  honis  no?i  of  C.  Held  :  The  proceeds  of 
sale  not  being  necessary  for  the  reimbursement  or  indemnity  of 
W.'s  estate,  his  administrator  shall  be  enjoined  from  proceeding 
to  collect  the  debt  from  the  administrator  de  honis  non  of  C,  but 
he  shall  hold  it  as  unadministered  assets  of  his  intestate. 

In  the  case  of  2yler  et  als.  vs.  Nelson's  Administratrix,  14 
Grat,  214,  decided  February  9,  1858,  it  was  held :  A  court  of 
equity  has  jurisdiction  in  a  suit  by  a  high  sheriff  against  his 
deputy  and  the  sureties  of  the  deputy  to  have  a  settlement  of 
the  accounts  of  several  administrations  upon  estates  committed 
to  the  high  sheriff,  and  which  went  into  the  hands  of  the  deputy. 
And  the  suit  may  be  maintained,  though  the  deputy  had  settled 
the  administration  accounts  before  the  probate  court,  and  though 
tlie  bill  does  not  allege,  and  it  is  not  proved,  that  the  high  sheriff 
had  paid  the  balances  reported  to  be  due  on  the  settled  accounts, 


Citations  to  the  Code  of  Virginia.  377 

or  any  part  of  them.  Upon  the  death  of  the  high  sheriff,  the 
suit  should  be  revived  in  the  name  of  his  personal  representa- 
tive, and  not  in  the  name  of  the  personal  representative  of  the 
different  estates,  it  being  his  suit  against  his  agent. 

The  bond  of  the  sureties  for  the  deputy,  which  was  given  dur- 
ing the  first  year  of  the  sheriffalty,  bound  them  to  indemnify 
the  high  sheriff  for  the  acts  of  his  deputy  during  the  continu- 
ance in  ofiice  of  the  high  sheriff.  Their  liability  does  not  ex- 
tend to  indemnify  the  high  sheriff  for  the  acts  of  the  deputy  in 
relation  lo  an  estate  committed  to  the  sheriff  during  his  second 
year  in  office. 

The  sureties  of  the  deputy  are  liable  for  the  amount  of 
bonds  taken  by  the  first  administrator  on  the  estate,  and  after 
his  death  delivered  by  his  administrator  to  the  sheriff  in  the 
first  year  of  his  sheriffalty.  The  sureties  of  the  deputy  will  be 
responsible  for  assets  received  by  him  after  the  end  of  the  year. 

In  the  case  of  UtterhacK s^  Administrator  vs.  Cooper,  28  Grat., 
233,  decided  March,  1877,  it  was  held:  Although  at  common 
law  the  appointment  by  a  creditor  of  his  debtor  as  executor 
operated  as  against  legatees  and  distributees,  with  certain  ex- 
ceptions, as  a  release  of  the  debt,  this  rule  never  applied  to  a 
debtor  who  was  appointed  administrator  of  his  creditor. 

If  the  obligor  of  a  bond  take  out  administration  to  the  obligee, 
and  dies,  the  administrator  de  honis  noii  of  the  obligee  may  main- 
tain an  action  for  such  debt  against  the  executor  of  the  obligor. 
And  so,  if  the  debtor  administrator  is  removed  from  his  office, 
the  action  may  be  maintained  against  him  by  the  administrator 
de  honis  non  of  the  obligee. 

A  lien  given  to  secure  the  debt  due  from  an  executor  or  ad- 
ministrator to  his  testator  or  intestate  is  of  course  discharged 
when  the  debt  is  actually  paid  to  the  creditors  or  legatees  or 
distributees  of  the  creditor ;  but  the  introducing  a  debt  into  an 
administration  account  as  a  charge  to  the  executor  or  adminis- 
trator is  not  sufficient  to  discharge  the  lien  either  as  against 
creditors,  legatees,  or  distributees  of  the  creditor,  or  as  against 
the  sureties  of  the  executor  or  administrator. 

A.  sold  to  his  son  U.  a  tract  of  land,  taking  his  bonds  for  the 
purchase-money,  and  a  deed  of  trust  on  the  land  to  secure  them. 
He  died,  and  his  son  U.  qualified  as  his  administrator.  Shortly 
afterwards  U.  obtained  a  loan  of  money  and  stock  from  C,  and 
gave  a  deed  on  his  same  land  to  secure  it.  Upon  a  bill  by  C. 
against  the  administrator  de  honis  non  of  A.,  and  U.  and  his 
sureties  on  his  official  bond,  to  enforce  his  lien,  the  court  being 
of  opinion  from  all  the  evidence  that  U.  had  not  paid  any  part 
of  his  debt  to  A.,  though  he  represented  to  C.  he  had  done  it,  and 
that  he  was  fraudulently  trying  to  get  rid  of  the  lien  in  favor  of 
A.  in  order  to  raise  money  for  his  own  purposes,  and  that  C. 


378  Citations  to  the  Code  of  Virginia. 

either  knew,  or  might  have  known  if  he  had  wished  it,  the  facts,, 
and  made  the  loan  with  the  knowledge  of  them,  or  in  wilful 
ignorance,  held :  In  favor  of  A.'s  estate  and  U.'s  sureties,  that 
the  lien  to  secure  A.'s  debt  was  a  valid,  subsisting  lien,  and  had 
preference  to  the  lien  of  C. 

In  the  case  of  Hinton  et  als.  vs.  Bland's  Ad'rninistrator  et  als.^. 
81  Va.,  588,  decided  April  8,  1886,  it  was  held:  Administrator 
de  bonis  non  is  entitled  to  all  the  personal  estate  of  intestate 
which  has  not  been  converted  by  the  former  administrator. 
And  where  in  suit  there  is  money  ordered  to  be  paid  to  the  in- 
testate's estate,  the  administrator  de  ho7iis  non  must  be  a  party. 

In  the  case  of  Smith  vs.  Pattie,  81  Va.,  654,  decided  April  15,. 
1886,  it  was  held :  Where  administrator  is  sole  heir  and  dis- 
tributee of  his  intestate,  and  there  are  judgments  against  him 
individually  which  attached  to  the  intestate's  estate  as  soon  as 
it  descended  upon  his  said  heir  and  distributee,  and  there  are 
debts  against  the  intestate  which  are  barred  by  the  statute  of 
limitations,  the  administrator  cannot  review  those  debts  and 
repel  the  bar  by  any  promise  in  writing,  or  otherwise,  but  is 
bound  to  plead  the  statute  against  those  debts ;  and  if  he  refuses 
or  fails  to  do  so,  it  is  the  right  of  the  judgment-creditor,  by 
reason  of  his  interest  in  the  fund,  to  interpose  the  plea. 

In  the  case  of  Harman  vs.  McMidlin,  85  Va.,  187,  decided 
August  2,  1888.  Appointment  of  receiver  does  not  affect  title 
to  fund  which  is  still  regarded  as  in  custodia  legis.  When  ad- 
ministrator has  been  removed  and  estate  committed  to  sheriff  as 
administrator  de  honis  non,  and  unadministered  assets  are  in- 
sufficient to  pay  debts,  and  to  pay  same  that  fund  must  be 
drawn  upon  to  some  unknown  extent.  Held  :  It  is  proper  not 
to  pay  the  fund  at  once  to  distributees,  but  to  appoint  a  receiver 
to  hold  same  for  protection  of  sureties,  creditors,  and  distribu- 
tees, especially  as  administrator  de  honis  non  cannot  sue  his 
predecessor  for  assets  wasted  or  converted. 

Section  2651. 

In  the  case  of  Lawrasoris  Administrators  \%.  Davenport  et  ah^ 
2  Call,  95  (2d  edition,  79),  decided  October  31,  1799.  An  ad- 
ministrator seUing  a  large  certificate  to  pay  a  small  debt  was 
held  (under  the  circumstances)  not  liable  for  what  the  certificate 
would  have  sold  for  if  kept,  but  for  the  market  price  at  his  own 
residence. 

In  the  case  of  McCall  vs.  Peachey's  Administrators,  3  Munf., 
288,  decided  January  25,  1812,  it  was  held:  In  determining 
which  of  the  goods  and  chattels  of  a  testator,  or  intestate,  shall 
be  sold  "  as  liable  to  perish,  consume,  or  be  the  worse  for  using 
or  keeping,"  some  latitude  of  discretion  must  be  allowed  to  the 
executor  or  administrator,  and  his  conduct  appearing  to  be  fair. 


Citations  to  the  Code  of  Virginia.  379 

and  probably  proceeding  from  a  good  intention,  ought  to  be 
sanctioned  by  a  court  of  equity.  An  administrator  with  the  will 
annexed  has,  in  general,  the  same  powers  which,  under  the  will^ 
the  executors  would  have  had  if  they  had  qualified. 

Section  2652. 

In  the  case  of  Sale  vs.  Boy,  2  H.  &  M.,  69,  decided  March  9, 
1808,  it  was  held :  The  right  of  a  purchaser  at  public  auction 
from  an  executor  of  slaves  specifically  bequeathed  by  -the  tes- 
tator cannot  be  disturbed  by  the  legatee,  whether  the  sale  was 
necessary  for  the  payment  of  debts  or  not,  unless  it  be  proved 
that  the  purchaser  knew  there  were  no  debts  to  render  such  sale 
necessary,  the  remedy  of  the  legatee  being  otherwise  against 
the  executor  only ;  neither  can  such  purchaser  himself  compel 
the  executor  to  rescind  the  contract. 

In  the  case  of  Anderson  vs.  Fox,  2  H.  &  M.,  245,  decided 
April,  1808,  it  was  held :  If  an  executor  sells  the  slaves  of  hia 
testator  when  there  are  no  debts  to  render  such  sale  necessary, 
and  buys  them  himself,  the  sale  may  be  set  aside  at  the  in- 
stance of  any  person  interested. 

An  executor  having  sold  certain  slaves  which  were  specifically 
bequeathed  by  his  testatrix,  having  become  the  purchaser  him- 
self, and  afterwards  recovered  damages  in  an  action  of  trespass 
against  the  sheriff  for  seizing  and  selling  them  as  the  property 
of  the  specific  legatee  in  whose  possession  they  were  found,  a 
court  of  equity  will  require  an  account  of  his  administration,  to 
ascertain  whether  the  sale  at  which  he  was  himself  the  pur- 
chaser was  necessary  for  the  payment  of  debts  or  not,  and  (even 
if  the  sale  and  purchase  by  himself  be  justified  by  the  result  of 
the  investigation)  will  grant  a  new  trial  of  the  issue  in  the 
action  of  trespass  (though  no  motion  to  that  effect  was  made  at 
law)  in  case  the  damages  were  excessive  and  produced  by  erro- 
neous impressions  on  the  minds  of  the  jury ;  and  where  the 
damages  are  evidently  excessive,  the  testimony  of  the  jurors  will 
be  received  to  declare  the  motives  which  induced  them  to  give 
such  damages.  In  such  case  the  damages  ought  not  to  be  vindic- 
tive, but  only  for  the  value  of  the  slaves,  with  a  reasonable 
allowance  for  hire. 

Note. — In  this  case  a  doubt  was  suggested  whether  an  ex- 
ecutor could  legally  purchase  the  property  of  his  testator  sold 
by  himself,  though  the  sale  were  public  and  necessary  for  the 
payment  of  debts,  but  it  appears  from  the  decree  that  such  sale 
and  purchase  (the  sale  being  necessary  for  the  payment  of 
debts)  would  be  confirmed  if  no  fraud  were  proved. 

In  the  case  of  Hudson  et  als.  vs.  Hudsoris  Administrators,  & 
Munf.,  180,  decided  October  25, 1816,  it  was  held :  If  an  execu- 
tor or  administrator  sell  the  shares  of  his  testator  or  intestate 


k 


380  Citations  to  the  Code  of  Virginia. 

by  private  contract  for  ready  money,  he  ought  to  be  charged 
therefor  such  sum  as  they  would  have  sold  for  upon  a  reason- 
able credit,  if  the  situation  of  the  estate  would  admit  of  such 
credit ;  and  if  not,  such  a  sum  as  they  would  have  sold  for,  in 
cash,  at  public  auction. 

A  purchase  by  an  executor  or  administrator  of  any  part  of 
the  estate  of  his  testator  or  intestate,  where  other  persons  were 
debarred  from  bidding  in  consequence  of  doubts  concerning  the 
title  suggested  by  himself,  whereby  he  obtained  the  property 
for  less  than  its  value,  ought  to  be  annulled  by  a  court  of  equity. 

In  the  case  of  Knight  vs.  Yarborough,  4  Rand.,  566,  decided 
December,  1826,  it  was  held :  An  executor  may  make  a  valid  sale 
of  his  testator's  effects,  whether  they  be  necessary  for  the  pay- 
ment of  debts  or  not,  if  there  is  no  fraud  or  collusion  in  the 
purchaser. 

Section  2654. 

In  the  case  of  DanieVs  Executor  vs.  Cook,  1  Wash.,  306,  de- 
cided at  the  fall  term,  1794,  it  was  held :  If  the  testator  is 
bound,  the  executor  is  also  bound,  though  not  named  in  per- 
sonal contracts. 

The  court  avoided  giving  any  opinion  in  regard  to  real  con- 
tracts. 

In  the  case  of  Payne's  Executor  vs.  Sampson,  2  Wash.,  200 
(1st  edition,  p.  155),  decided  at  October  term,  1795,  it  was  held: 
An  action  of  covenant  respecting  real  estate  will  lie  against  ex- 
ecutors, though  not  expressly  bound. 

In  the  case  of  FitzhugKs  Executor  vs.  G.  F.  Fitzhugh,  11 
Grat.,  300,  decided  April,  1854,  it  was  held:  A  personal  repre- 
sentative cannot  be  sued  as  such  for  services  rendered  or  goods 
furnished  to  his  testator's  or  intestate's  estate  since  his  death. 
It  seems  that  an  action  will  not  lie  against  the  personal  repre- 
sentative as  such  for  the  funeral  expenses  of  his  testator  or 
intestate. 

In  some  cases,  where  money  is  paid  for  a  deceased  person, 
an  action  for  money  paid  will  lie  against  the  personal  repre- 
sentative as  such,  as  where  money  has  been  paid  by  a  joint 
surety. 

Where  the  demands  made  in  all  the  counts  in  a  declaration 
are  such  that  an  action  cannot  in  any  case  be  maintained  upon 
them  against  the  personal  representative  as  such,  the  descrip- 
tion of  him  as  such  may  be  considered  as  mere  surplusage,  and 
the  judgment  may  be  against  him  personally. 

But  if  the  demand  set  out  in  any  one  of  the  counts  may  possi- 
bly be  maintained  against  the  personal  representative  as  such, 
then  the  description  of  him  as  such  cannot  be  treated  as  sur- 
plusage, and  if  the  action  cannot  be  maintained  against  him  in 
ms  representative  character,  it  must  fail. 


i 


.     Citations  to  the  Code  op  Virginia.  381 

In  the  case  of  Georgia  Home  Insurance  Co.  vs.  Kinnier  {Ad- 
ministrator), 28  Grat.,  88,  decided  January,  25,  1877,  it  was  held, 
p.  92 :  A  policy  of  insurance  on  a  building  insures  K.  and  his  legal 
representatives.  The  building  having  been  burned  after  the  death 
of  K.,  his  administratrix  may  maintain  an  action  on  the  policy. 

One  of  the  conditions  of  the  policy  is,  that  it  shall  be  void 
"  if  the  title  of  the  property  is  transferred  or  changed."  This 
does  not  apply  to  the  descent  of  the  property  on  the  death  of 
the  assured  to  his  heirs. 

In  the  case  of  Gr^iWs  Administrators  vs.  Suit,  32  Grat.,  203, 
decided  September  19, 1879,  it  was  held  :  An  action  for  breach 
of  promise  of  marriage  will  not  lie  against  the  personal  repre- 
sentative of  the  promisor,  either  at  common  law  or  under  our 
statute,  in  a  case  where  no  special  damages  are  alleged  and 
proved.  In  such  a  case,  the  maxim  actio  personalis  moritur  cum 
persona  applies.  Quaere:  Can  such  an  action  be  maintained 
against  the  personal  representative  of  the  promisor  where 
special  damages  are  alleged? 

Section  2655. 

In  the  case  of  Ferril  vs.  Brewis's  Administrators,  25  Grat., 
765-770,  decided  January  21,  1875,  it  was  held :  Trover  may 
be  sustained  against  a  personal  representative  as  such,  though 
the  goods  never  came  into  his  hands.  '^ 

In  the  case  of  Lee's  Administrator  vs.  Hill,  87  Va.,497,  decided 
March  5,  1891,  it  was  held:  Where  one  was  wrongfully  dis- 
charged by  decedent,  trespass  on  the  case  may  be  maintained 
under  this  section  against  the  personal  administrator,  or  as- 
sumpsit for  breach  of  contract  at  common.  In  either  case  the 
action  survives.  And  when  defendant  dies  pending  the  action 
it  may  be  revived  against  the  personal  representative. 

Section  2657. 
In  the  case  of  Dykes  dh  Co.  vs.  Woodhouse's  Administrators, 
3  Rand.,  287,  decided  March,  1825,  it  was  held:  An  adminis- 
trator de  bonis  non  may  maintain  an  action  of  debt  on  a  judg- 
ment obtained  by  the  executor.  In  such  an  action,  it  will  be 
sufficient  to  allege  in  the  declaration  that  A.  B.,  executor  of 
C.  D.,  recovered  the  judgment,  and  it  will  be  inferred  that  the 
debt  was  originally  due  to  the  testator  on  the  plea  of  nul  tiel  record. 

Section  2658. 
In  the  case  of  Braxton's  Executor  vs.  Winslow,  1  Wash.,  31, 
decided  at  the  spring  term,  1791,  it  was  held :  For  creditors  of 
decedent  to  charge  the  securities  on  the  bond  of  a  personal  re- 
presentative, it  is  necessary  to  prosecute  suit  against  personal 
representative  to  judgment,  and  execution  must  bear  a  return  of 
7iulla  Ijona,  and  must  prove  that  the  said  personal  representa- 
tive has  committed  a  devastavit. 


382  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Allen  et  ah.,  etc.,  vs.  Cunningham  et  als.,  3  Leigh, 
395,  decided  December,  1831.  A  ji.  fa.  on  judgment  against 
an  administrator  is  returned  "no  unadministered  or  unincum- 
bered effects  found,"  etc.  Held :  This  is  a  return  of  nulla  hona, 
to  entitle  the  plaintiff  to  an  action  on  the  administrator's  bond. 

In  the  case  of  Bush  vs.  Beale,  1  Grat.,  229,  decided  Septem- 
ber, 1844,  it  was  held :  A  creditor  of  a  decedent  who  has  ob- 
tained a  decree  de  bonis  testatoris  against  the  executor,  on  which 
an  execution  has  issued,  and  has  been  returned  tiulla  bo?ia,  may 
maintain  an  action  against  the  executor  and  his  sureties  on  the 
executorial  bond. 

In  the  case  of  Kenfs  Administrators  vs.  Cloyd's  Administra- 
tors, 30  Grat.,  555,  decided  August  1, 1878,  it  was  held,  p.  559 :  It 
is  error  to  decree  that  an  administrator  de  honis  non  shall  pay  a 
debt  of  his  testator  out  of  the  assets  in  his  hands,  upon  an  ad- 
mission in  his  answer  that  there  are  debts  due  the  estate,  uncol- 
lected, more  than  sufficient  to  pay  all  the  debts. 

Section  2659. 

In  the  case  of  Eppe's  Administrators  vs.  Smith  {Administra- 
tor of  Bagley),  4  Munf.,  466,  decided  October,  1815,  it  was  held: 
On  the  plea  of  "no  assets,"  a  verdict  finding  that  the  adminis- 
trator has  in  his  hands  assets  belonging  to  the  estate  of  his  in- 
testate, without  saying  to  what  amount,  is  defective,  and  a  new 
trial  ought  to  be  directed. 

If  a  judgment  be  rendered  against  an  administrator  for  a  debt 
of  his  intestate,  and  after  his  death  an  action  of  debt  suggest- 
ing a  devastavit  to  have  been  committed  by  him  in  his  lifetime 
be  brought  against  his  administrator,  such  defendant  is  stopped 
by  the  judgment  from  pleading  that  no  assets  of  the  estate  of 
the  original  intestate  ever  came  to  the  hands  of  the  said  origi- 
nal administrator.  A  general  replication  and  demurrer  to  the 
same  plea  may  be  put  in. 

In  the  case  of  Pendleton's  Administrators  vs.  Stuart  <&  McCoull, 
6  Munf.,  377,  decided  April  13, 1819,  it  was  held :  Notwithstand- 
ing a  judgment  against  administrators,  as  such,  in  an  action  of 
debt,  to  which  they  pleaded  "  payment  by  the  intestate,"  and  a 
subsequent  judgment  against  them  personally,  in  an  action  sug- 
gesting a  devastavit,  to  which  they  pleaded  "no  waste,"  relief  in 
equity  was  granted  them  in  this  case,  on  the  grounds  that  the 
peculiar  and  perplexed  state  of  the  assets  made  it  difficult,  if 
not  impracticable,  to  plead  in  relation  thereto  at  law ;  and  that 
at  the  trial  of  the  second  action  their  principal  counsel  was  ab- 
sent, and  their  assistant  counsel  withdrew  from  the  cause;  in 
consequence  whereof  they  were  wholly  undefended,  and  a  ver- 
dict perhaps  contrary  to  justice  was  obtained  against  them, 
without  any  negligence  or  default  on  their  part. 


I 


Citations  to  the  Code  of  Virginia.  383 

In  the  case  of  Miller's  Executors  vs.  Rice  et  als.,  1  Eand.,  438, 
-decided  May,  1823,  it  was  held :  Where  an  executor  confesses 
judgment,  and  givers  forthcoming  bonds  for  debts  due  by  his 
testator,  under  the  belief  that  the  assets  of  the  estate  are  amply 
sufficient  to  pay  all  claims  against  it,  but  afterwards,  by  an  un- 
-expected  depreciation  of  property,  the  amount  of  assets  proves 
inadequate,  the  executor  shall  be  relieved  in  equity. 

In  the  case  of  Henrico  Justices  at  the  relation  of  Craddock  vs. 
Turner's  Administrator,  6  Leigh,  116,  decided  February,  1835. 
A  man  marries  ^  feme  executrix  or  administratrix,  and  so,  being 
executor  or  administrator  in  his  wife's  right,  administers  the 
•estate  and  wastes  the  assets  of  her  testator  or  intestate,  and  then 
dies,  leaving  'Cix&feme  executrix  or  administratrix  surviving  him. 
Held :  The  waste  committed  by  the  husband  during  the  cover- 
ture, does  not  constitute  a  debt  due  from  him  to  the  testator's 
estate,  which  is  entitled  to  preference  in  the  administration  of 
his  own  estate  over  his  own  proper  debts  under  the  statute. 

In  the  case  of  Clements  vs.  Powell's  Administrators,  9  Leigh, 
1,  decided  November,  1837,  it  was  held :  In  a  summary  motion 
against  administrators  for  money  paid  by  plaintiffs  for  defen- 
dant's intestate,  it  is  no  sufficient  ground  for  a  continuance  that 
defendants  had  qualified  only  some  seven  or  eight  months  be- 
fore, and  so  had  not  had  time  to  settle  their  accounts  of  admin- 
istration, and  that  they  desired  to  defend  themselves  on  the 
ground  of  want  of  assets  to  pay  the  debt,  without  offering 
any  plea  or  affidavit  that  the  assets  were  insufficient. 

Section  2660. 

In  the  case  of  Mayo  vs.  Bentley,  4X!all,  528,  decided  October, 
1800,  it  was  held :  An  administrator  who  has  not  notice  of  a 
specialty  debt,  may  pay  or  confess  judgment  to  a  simple  con- 
tract-creditor. Qucere:  Whether  a  very  quick  confession  of 
judgment  to  a  simple  contract-debt  be  not  fraudulent  upon  bond 
creditors?  The  judges  were  equally  divided  upon  it.  An  ad- 
ministrator must  take  notice  at  his  peril  of  judgments  against 
the  intestate. 

If  there  be  two  bonds,  one  payable  at  the  death  of  the  intes- 
tate, and  the  other  not,  the  administrator  may  delay  the  cred- 
itor in  the  first  with  dilatory  pleas  until  the  second  becomes 
payable,  and  then  confess  judgment  upon  the  latter,  pending  the 
prior  suit  on  the  first,  and  plead  it  in  bar  on  the  first  action. 
For  among  creditors  of  equal  dignity,  the  administrator  may 
prefer  either,  and  the  second  bond  was  debitum  in  praesenti, 
though  payable  at  a  future  day. 

In  the  case  of  Lindsay  vs.  Hov^erton,  2  H.  &  M.,  9,  decided 
September  9,  1807,  it  was  held :  An  executor  or  administrator 
ought  to  be  credited  in  his  administration  account  for  fees  paid 


384  Citations  to  the  Code  op  Vikginia. 

to  counsel,  notwithstanding  those  fees  were  more  than  the  law 
allowed. 

In  the  case  of  Nimmds  Executor  vs.  The  Commonxoealth,  4r 
H.  &  M.,  57,  decided  May,  1809,  it  was  held :  An  executor  must, 
at  his  peril,  take  notice  of  a  judgment  against  his  testator,  in 
what  court  soever  it  may  have  been  rendered ;  and  if  he  ex- 
hausts assets  by  paying  debts  of  inferior  dignity,  must  satisfy 
such  judgment  de  honis  propriis. 

The  proceeds  of  the  sale  of  land,  directed  by  the  will  of  the 
testator  to  be  sold  for  the  payment  of  his  debts,  are  equitable 
assets,  and  should  be  distributed  among  all  the  creditors  pari 
passu;  nor  are  such  assets  proper  subjects  for  the  cognizance 
of  a  court  of  law. 

In  the  case  of  Elliot  vs.  Carter  et  als.,  9  Grat.,  541,  decided 
January,  1853,  it  was  held,  p.  548:  The  first  fund  to  be  ap- 
plied to  the  payment  of  debts  is  the  personal  estate  at  large, 
not  exempted  by  the  terms  of  the  will  or  necessary  implication ;; 
next  to  it  real  estate,  or  an  interest  therein  expressly  set  apart 
by  the  will  for  the  payment  of  debts ;  next,  real  estate  descended 
to  the  heir;  after  it,  property  real  or  personal,  expressly  charged 
with  payment  of  debts,  and  then  subject  to  such  charge,  specifi- 
cally devised  or  bequeathed.  If  these  prove  inadequate,  then 
general  pecuniary  legacies,  and  after  them  specific  legacies,, 
both  classes  ratably ;  and  in  the  last  resort  real  estate  devised 
by  the  will. 

In  the  case  of  Price' s  Executor  et  als.  vs.  Harrison  s  Executor  et 
als.,  31  Grat.,  114,  decided  November,  1878.  P.,  who  is  trustee 
under  a  deed  for  benefit  of  infant  children,  died  in  June,  1865, 
indebted  to  the  trust,  and  his  executor  pays  to  the  other  trustee 
in  the  deed  a  part  of  that  debt.  Upon  the  settlement  of  P.'s 
estate  in  1877,  it  appears  that  he  is  largely  indebted  for  more 
than  his  assets.  Held :  Under  the  statute  in  force  at  the  time 
of  P.'s  death  his  debt  as  trustee  was  not  embraced  in  the  third 
class  of  creditors  provided  for  in  that  act,  but  must  be  placed 
in  the  fourth  class,  with  the  general  creditors  of  P.,  and  his  ex- 
ecutor is  not  entitled  to  a  credit  in  his  administration  account 
for  the  amount  of  the  trust  debt  he  had  paid.  See  Code  of 
1860,  Chapter  131,  Section  25. 

The  act  of  July,  1870,  Code  of  1873,  Chapter  126,  Section  25,. 
which  amends  the  former  law  by  inserting  in  the  third  class 
debts  of  trustees  for  persons  under  disabihties,  is  only  prospec- 
tive in  its  operation  and  will  not  authorize  the  placing  of  P.'s- 
debt  as  trustee  in  the  third  class,  though  the  estate  is  not  dis- 
tributed until  this  last  act  went  into  operation. 

In  the  case  of  Smit?t  et  als.  vs.  Blackwell  et  als.,  31  Grat.,  291, 
decided  January,  1879.  B.  is  the  guardian  of  J.,  and  upon  J.'s 
coming  of  age  B.  has  a  settlement  with  J.  of  his  account  as. 


Citations  to  the  Code  of  Virginia.  385 

guardian,  and  being  found  indebted  on  the  account  in  the  sum 
of  three  thousand  dollars,  he  executes  to  J.  his  four  bonds,  each 
for  seven  hundred  and  fifty  dollars,  payable  in  one,  two,  three, 
and  four  years,  with  interest.  B.  pays  the  interest  during  his 
life,  and  a  part  of  the  principal,  and  was,  up  to  the  war,  able  to 
pay  the  whole.  Held :  The  giving  and  taking  these  bonds  was 
not  a  novation  of  the  debt,  but  the  debt  due  from  B.  to  J.  con- 
tinued to  be  a  fiduciary  debt  and  entitled  to  rank  as  such  in  the 
administration  of  B.'s  estate.  In  a  suit  for  the  administration 
of  B.'s  estate  the  commissioner  classifies  the  debt  of  J.  among 
the  general  creditors  of  B.,  and  there  is  a  decree  confirming  the 
report  and  distributing  a  fund  in  court  ^ro  rata  among  the  credi- 
tors. There  were  several  other  decrees  for  accounts  of  further 
debts  of  B.,  and  still  a  fund  in  court  to  be  distributed,  when  J. 
made  himself  a  defendant  in  the  suit  and  filed  his  petition  in- 
sisting that  his  was  a  fiduciary  debt.  Held :  The  decree  con- 
firming the  report  was  an  interlocutory  decree,  and  J.  was  not 
precluded  from  setting  up  his  claim  as  a  fiduciary  creditor  of  B. 

In  the  case  oi Brown  et  ah.  vs.  Lainbert's  Administrator  etals., 
33  Grat.,  256,  decided  April,  1880.  On  the  15th  of  January, 
1858,  E.,  by  deed  recorded  the  same  day,  in  consideration  of  love 
and  affection,  conveyed  to  B.,  trustee,  all  of  his  property,  includ- 
ing therein  several  slaves,  in  trust  for  the  use  of  himself  and 
wife  for  their  lives,  and  at  the  death  of  both  of  them  for  their 
surviving  children,  and  in  case  of  the  death  of  any  of  the 
children  before  E.  and  his  wife,  for  the  children  of  the  deceased 
children,  and  in  such  portions  as  his  children  would  have  taken 
had  they  survived  him  and  his  wife.  B.,  the  trustee,  died  in  1832, 
and  the  property  was  without  any  regularly  appointed  trustee 
until  1862,  when  E.,  the  grantor,  instituted  proceedings  and  had 
himself  appointed  trustee  by  the  court.  E.  died  in  1872,  and 
his  wife  in  1874,  no  children  survived  either,  and  the  appellants, 
the  grandchildren,  were  entitled  to  the  trust  estate.  From  the 
date  of  the  deed  to  the  death  of  E.  the  latter  continued  in  pos- 
session of  the  trust  property,  using  it  as  his  own ;  and  between 
1832  and  1862  sold  several  of  the  slaves,  received  the  proceeds, 
appropriated  them  to  his  own  use,  and  never  accounted  for 
them  to  anyone.  In  a  creditor's  suit  brought  for  a  settlement 
of  E.'s  estate,  the  grandchildren  claimed  the  proceeds  of  the 
slaves  sold  by  E.,  and  that  the  debt  was  a  fiduciary  one,  and  as 
such  entitled  to  priority.  Held :  The  debt  is  entitled  to  priority 
as  a  fiduciary  one  in  the  distribution  of  the  assets  of  the  de- 
cedent. 

In  the  case  of  Strange' a  Administrator  vs.  Strange  et  als., 
76  Va.,  240  and  244. 

13.  Homestead. — Rules  for  subjecting  to  decedent's  debts. — 
Decedent's  entire  estate  maybe  subjected  to  a  homestead-waived 


386  Citations  to  the  Code  of  Virginia. 

debt,  but  the  portion  not  embraced  in  the  homestead  deed  shall 
be  first  subjected.     V.  C.  1873,  Chapter  183,  Section  3. 

4.  Idem. — After  the  exempted  property  has  been  set  apart, 
the  residue  shall  be  applied  towards  paying  all  the  decedent's 
debts  ratably  (unless  there  be  some  entitled  to  priority  under 
V.  C.  1873,  Chapter  126,  Section  25),  and  after  the  residue  has 
been  exhausted,  the  exempted  property  may  be  subjected  to  pay 
such  portion  of  the  homestead-waived  debts  as  remain  unpaid. 

6.  Idem. — Decree  that  the  administrator  turn  over  to  widow 
money  and  choses  in  action  for  her  "homestead"  before  the 
residue  of  the  estate  has  been  gotten  in  and  applied  to  the  debts, 
or  before  it  is  ascertained  whether  it  will  be  sufficient  to  satisfy 
all  the  debts,  is  erroneous.  The  course  proper  for  the  court  be- 
low is  stated  by  Burks,  J.,  on  the  last  page  of  opinion. 

In  the  case  of  Spillman  vs.  Payne,  84  Va.,  435,  decided  Jan- 
uary 26,  1888,  it  was  held:  The  State  has  no  priority  under 
this  section  on  decedent's  estate  for  taxes  collected  byiiim  as 
tax  collector  of  the  estate  and  not  accounted  for,  but  only  for 
taxes  assessed  upon  him  during  his  lifetime. 

In  the  case  of  Robinson  vs.  Allen,  85  Va.,  721,  decided  Feb- 
ruary 7,  1889,  it  was  held :  Where  deceased  partner's  separate 
assets  are  not  sufficient  to  pay  all  his  debts,  those  due  by  him 
in  a  fiduciary  capacity  are  to  be  paid  first. 

Section  2662. 
In  the  case  of  TrevilUans  Executors  vs.  Guerran€ s  Executors 
et  ah.,  31  Grat.,  525,  decided  February  13,  1879,  it  was  held : 
The  lien  of  an  execution  of  a  fieri  facias  upon  the  debtor's 
choses  in  action,  though  not  enforced  in  his  lifetime,  continues 
after  his  death  as  against  the  other  creditors  of  the  debtor. 

CHAPTEE  CXX. 
Section  2663. 

In  the  case  of  Johnston  vs.  Thompson,  5  Call,  248,  decided 
October,  1804,  it  was  held :  If  before  the  revolution  the  testator 
directed  that  his  executors  should  sell  his  lands,  a  sale  by  one 
was  void  unless  it  appeared  that  the  other  was  dead,  or  refused 
to  qualify. 

In  the  case  of  Deneale  vs.  Morgari's  Executors,  5  Call,  407, 
decided  April,  1805,  it  was  held :  If  in  a  will  made  before  the 
revolution  a  general  power  to  executors  to  sell  lands  was  given, 
a  sale  by  one  without  the  consent  of  the  rest  was  void. 

In  the  case  of  Geddy  (&  Knox  vs.  Butler  et  ux.,  3  Munf.,  345, 
decided  November  27,  1812,  it  was  held :  Where  a  testator  who 
empowered  his  executors  to  sell  and  convey  certain  real  estate 
died  before  the  1st  of  January,  1787,  the  construction  of  the 
will,  as  to  the  power  of  the  executors  to  convey,  is  to  be  gov- 


^ 


I 


Citations  to  the  Code  of  Virginia.  387 

©rued  by  the  statute  of  21  Henry  VIII.,  and  not  by  the  act  of 
1785,  Chapter  61,  notwithstanding  the  conveyance  was  executed 
after  the  1st  of  January,  1787. 

In  the  case  of  Nelson  vs.  Carrington  {Executor  of  Burwell  et 
als.),  4  Munf.,  332,  decided  November  24,  1813,  it  was  held:  A 
testator  in  the  year  1784,  having  directed  that  his  executors 
should  sell  all  his  real  and  personal  estate  for  the  payment  of 
his  debts,  and  having  appointed  four  executors,  three  of  whom 
qualified,  a  sale  in  the  year  1794,  by  two  of  the  acting  execu- 
tors, was  considered  valid,  and  the  third  executor  (as  well  as  the 
fourth,  who  never  qualified)  was  presumed  to  have  renounced 
his  right  to  administer,  as  at  the  date  of  the  sale  in  question. 
If  the  written  agreement  of  sale  be  signed  by  the  purchaser  and 
one  of  the  two  acting  executors,  the  other  may,  by  acts  in  pais, 
though  not  in  writing  (such  as  delivering  possession  of  the  land 
and  the  like),  manifest  his  assent  to  the  sale,  and  make  it  his 
own  act. 

Although  a  tract  of  land  be  decreed  to  be  sold  to  satisfy 
a  mortgage,  the  executors  of  a  mortgagor,  being  authorized  by 
his  will  to  sell  all  his  real  and  personal  property,  may  sell  it  for 
a  full  price  with  the  assent  of  the  mortgagee  or  his  attorney. 

In  the  case  of  Gntntland  vs.  Joy's  Executor,  5  Munf.,  295, 
decided  December  11,  1816,  it  was  held:  An  executor  selling 
the  lands  of  his  testator,  by  virtue  of  a  power  given  by  the  will, 
is  not  bound  to  convey  with  general  warranty,  without  an  agree- 
ment to  that  effect;  but  only  with  special  warranty  against 
himself  and  all  persons  claiming  under  him,  notwithstanding 
a  written  agreement  after  the  sale  that  he  would  make  "a  good 
and  indefeasible"  title  to  the  purchaser;  for  such  agreement 
is  to  be  understood  in  reference  to  the  terms  of  sale. 

In  the  case  of  Carrington  s  Executors  vs.  Belt  and  Wife,  6 
Munf.,  374,  decided  April  12,  1819,  it  was  held:  A  testator  in- 
vested in  his  executors  his  whole  estate,  "to  be  divided  by 
them  among  his  heirs  from  time  to  time  as  they  might  think 
most  conducive  to  the  interest  of  his  estate  and  family."  By 
another  clause  he  empowered  them  to  sell  his  landed  interests 
in  a  certain  undivided  estate,  and  in  the  State  of  Kentucky. 
According  to  the  true  construction  of  this  will,  his  executors 
were  empowered  to  divide  his  other  lands  and  his  slaves  among 
his  heirs,  but  not  to  sell  them,  nor  to  make  an  unequal  division, 
nor  to  give  certain  classes  of  the  property  to  some  of  the  devi- 
sees, and  others  to  others. 

In  the  case  stated,  although  the  words  giving  power  to  divide 
the  estate  "  from  time  to  time,"  etc.,  are  very  extensive,  the  court 
should  rather  consider  them  as  authorizing  the  executors,  under 
circumstances,  to  deliver  the  property  to  the  devisees  before  at- 
taining legal  age  or  marriage,  than  to  hold  it  up  indefinitely 


388  Citations  to  the  Code  of  Virginia. 

thereafter.  If  thereafter  they  could,  under  any  circumstances, 
suspend  an  allotment,  the  circumstances  must  be  such  as  to 
render  the  division  more  injurious  to  the  interests  of  the  estate 
and  family  then  than  at  a  future  period. 

In  the  case  of  Brown  vs.  Annistead,  6  Rand.,  594,  decided 
December,  1828,  it  was  held :  When  executors  are  directed  by 
will  to  sell  lands,  and  they  renounce  the  executorship,  an  ad- 
ministrator with  the  will  annexed  may  sell  under  the  authority 
given  by  our  statute,  although  the  will  directs  the  executors  to 
sell,  "provided  the  said  land  will  sell  for  as  much  as,  in  their 
judgment,  will  be  equal  to  its  value ; "  for  the  power  of  the  ex- 
ecutors is  rather  restricted  than  enlarged  by  the  proviso.  It 
does  not  vest  any  peculiar  personal  confidence  in  them. 

The  executors  are  made  trustees,  and  within  the  limit  imposed 
on  the  exercise  of  the  power  the  trust  is  imperative,  and,  the  ex- 
ecutors having  renounced,  the  case  falls  within  the  letter  and 
spirit  of  the  statute. 

In  the  cases  of  Broadus  et  als.  vs.  Hosson  and  Wife  et  als.,  Win- 
ston vs.  Same,  3  Leigh,  12,  decided  May,  1831.  Testator,  being 
about  to  leave  the  country,  makes  his  will,  and  devises  that,  in 
case  of  his  death,  or  if  he  should  not  be  heard  of  for  ten  years, 
his  land  should  be  sold  for  the  best  price  that  could  be  got,  as 
was  directed  by  letter  of  attorney  to  J.  H.,  of  same  date  with 
the  will,  and  proceeds  divided  among  his  four  sisters.  Held : 
The  administrator  with  the  will  annexed  has  power  to  sell  the 
land  under  the  statute. 

In  the  case  of  Jackson  vs.  Lignon,  3  Leigh,  161,  decided 
November,  1831.  Testator,  after  making  provisions  for  his  wife 
by  his  will,  devises  that  after  his  wife's  death  or  marriage  his 
land  shall  be  sold  and  the  money  arising  from  the  sale  equally 
divided  among  his  children;  widow  renounces  the  will  and 
dower  is  assigned  her.  Held :  Executor  has  no  power  to  sell 
during  widow's  life  and  widowhood,  or  to  sell  part  of  the  sub- 
ject. 

In  the  case  of  Thompson  vs.  Meek,  7  Leigh,  419,  decided  April, 
1836.  A  testator  directs,  first,  that  his  funeral  expenses  and  all 
his  just  debts  be  paid ;  second,  he  desires  that  certain  lands, 
which  he  specifies,  be  sold  by  his  executors,  and  the  money  ap- 
propriated to  the  payment  of  debts;  he  then  devises  a  par- 
ticular tract  of  land  to  his  son  and  daughter;  afterwards 
he  directs,  if  necessary  for  the  payment  of  his  debts,  that  a 
part,  the  least  in  value,  of  the  tract  given  his  son  and  daughter 
be  sold  "to  fully  satisfy  and  pay  all  his  just  debts."  Held: 
The  testator's  meaning  was,  that  all  his  debts  should  be  fully 
satisfied,  and  so  much  of  the  tract  of  land  last  mentioned  be 
sold  as  would  effect  the  purpose,  even  though  it  may  take  the 
whole,  but  that  before  any  part  of  this  tract  was  sold  the  other 


Citations  to  the  Code  of  Virginia.  389 

property  specifically  appropriated  to  tlie  payment  of  debts  ought 
first  to  be  applied  to  the  object. 

In  the  case  of  Mills  et  als.  vs.  Mills  Executors  et  als.,  Same 
vs.  Lancaster  et  als.,  28  Grat.,  442  and  490,  decided  March,  1877. 
Where  executors  acting  during  the  late  war  had  full  power 
under  the  will  to  do  the  acts  which  they  performed,  and  in  per- 
forming them  acted  in  good  faith  in  discharge  of  what  they  be- 
lieved to  be  their  duty  as  executors,  they  are  not  liable  for  the 
ultimate  loss  which  had  arisen  out  of  the  facts.  Executors  who 
are  empowered  by  the  will  under  which  they  act  to  sell  real 
estate  and  collect  debts,  and  invest  the  proceeds  for  the  purpose 
of  the  trusts  declared  in  the  will,  in  December,  1862,  sell  real 
estate,  and  in  January,  March,  and  April,  1863,  collect  the  war 
debts  well  secured  on  real  estate,  taking  payment  in  Confederate 
money,  which  they  immediately  invest  in  Confederate  8  per 
cent,  bonds  for  the  purpose  of  the  trusts  of  the  will.  Held: 
That  having  acted  in  good  faith,  and  in  the  exercise  of  their 
best  judgments,  under  the  circumstances  surrounding  them, 
they  are  not  liable  for  the  losses  incurred  from  such  sales,  col- 
lections, and  investments. 

Two  out  of  three  nominated  executors  qualify  and  sell  and 
convey  real  estate  to  the  purchasers,  who  pay  up  the  purchase- 
money  in  full.  Afterwards  the  third  qualifies,  and  consents  to 
the  sale  by  sharing  the  commissions.  Held:  The  title  of  the 
purchaser  is  valid,  at  least  in  equity. 

There  is  a  perpetual  rent  secured  on  real  estate  which  the 
lessee  has  the  right  to  redeem  by  paying  an  amount  which  at 
6  per  cent,  will  produce  an  interest  equal  to  the  rent.  Held : 
One  of  these  executors  may  receive  the  payment,  though  it  may 
require  all  to  execute  the  release. 

Section  2664. 

In  the  case  of  Jones  vs.  Hohson,  2  Rand.,  483,  decided  June 
11,  1824,  it  was  held :  Where  a  suit  is  brought  against  an  ex- 
ecutor and  his  sureties,  and  the  executor  confesses  assets,  it  is 
competent  for  a  court  of  equity  to  decree  immediately  against 
the  executor ;  and  that  liberty  should  be  reserved  to  the  creditor 
to  proceed  against  the  sureties  by  motion  if  it  should  become 
necessary. 

In  the  case  of  Burnett  et  als.  vs.  Harwell  et  als.,  etc.,  3  Leigh, 
89,  decided  October,  1831,  it  was  held :  Under  the  provisions 
of  the  same  statute,  an  action  cannot  be  maintained  on  an  ex- 
ecutor's bond,  at  the  relation  of  an  assignee  of  a  legatee  of  a 
decree  for  a  legacy ;  such  action  can  only  be  maintained  at  the 
relation  of  the  person  who  has  the  legal  right  to  the  debt. 

In  the  case  of  Smith's  Executors  vs.  Smith  et  als.,  17  Grat., 
268  and  277,  decided  February  5,  1867.     "All  the  rest  and 


390  Citations  to  the  Code  of  Vikginia. 

residue  of  my  estate  which  may  at  any  time  come  to  the  hands 
of  my  executor,  either  from  the  lapsing  of  the  aforesaid  legacies 
or  otherwise."  Held :  Upon  a  consideration  of  the  whole  will 
and  surrounding  circumstances,  to  include  the  testator's  real 
estate,  legacies  held  to  be  good  out  of  the  real  estate  if  the  per- 
sonal estate  is  not  sufficient. 

The  references  to  22  Grat.,  224,  230,  are  errors. 

Section  2665. 

In  the  case  of  Trent  vs.  Trent's  Executor  et  als.,  1  Va.  (Gil- 
mer), 174,  decided  February  7,  1821,  it  was  held :  Directing  by 
will  "the  payment  of  all  just  debts,"  charges  the  whole  estate, 
which  charge  is  not  released  by  a  subsequent  selection  of  par- 
ticular parts  to  be  sold  for  that  purpose.  Charging  the  whole 
estate  with  particular  debts  lets  in  every  creditor  on  the  whole 
estate.  An  annuity  is  a  legacy  charged  on  the  whole  estate  not 
specifically  devised. 

The  heir  is  entitled  to  the  real  estate,  though  charged  with 
debts,  until  convicted  of  mismanagement  or  misapplication  of 
profits. 

In  the  case  of  Meek's  Administrator,  etc.  vs.  Thompson  et  als., 
8  Grat.,  134,  decided  July,  1851,  it  was  held:  Where  the  charge 
upon  land  by  will  for  the  payment  of  debts  is  general,  the  pur- 
chaser from  the  executor  or  the  administrator,  with  the  will 
annexed,  is  not  bound  to  see  to  the  application  of  the  pur- 
chase-money. In  such  case,  if  the  sale  was  necessary  at  the 
time  it  was  made,  and  was  fairly  made,  and  the  purchase-money 
has  been  paid,  the  failure  of  the  executor  or  the  administrator 
to  account  for  and  pay  over  the  proceeds  to  the  creditors  of  the 
estate  wiU  not  impair  the  title  of  the  vendee. 

Land  in  which  a  widow  is  entitled  to  dower,  being  sold  by 
an  executor  under  a  charge  for  payment  of  debts,  should  be 
credited  in  his  account  of  the  proceeds  for  the  amount  he  has 
paid  the  widow  in  satisfaction  of  her  dower  interest. 

In  the  case  of  Elliot  vs.  Carter,  9  Grat.,  541,  decided  January, 
1853,  it  was  held,  page  548 :  The  first  fund  to  be  appHed  to  the 
payment  of  debts  is  the  personal  estate  at  large  not  exempted 
by  the  terms  of  the  will  or  necessary  implication.  Next  to  it 
real  estate,  or  an  interest  therein,  expressly  set  apart  by  the 
will  for  the  payment  of  the  debts.  Next,  real  estate  descended  to 
the  heir.  After  it,  property,  real  or  personal,  expressly  charged 
with  payment  of  debts,  and  then  subject  to  such  charge.  '  If 
these  prove  inadequate,  then  general  pecuniary  legacies;  and 
after  them,  specific  legacies,  both  classes  ratably ;  and  in  the  last 
resort  real  estate  devised  by  the  will. 

In  the  case  of  Gaw  vs.  Huffman,  12  Grat.,  628,  decided  Sep- 
tember 11,  1855,  it  was  held:  Executor  having  exhausted  the 


Citations  to  the  Code  of  Virginia.  391 

personal  estate  in  payment  of  debts,  and  being  largely  in  ad- 
vance to  the  estate  for  the  payment  of  debts  which  bound  the 
heirs,  is  entitled  to  stand  in  the  place  of  the  creditors  whose 
debts  he  has  paid,  and  charge  the  real  estate.  And  the  real 
estate  in  the  hands  of  the  devisees  is  liable  in  proportion  to  its 
value  at  the  death  of  the  testator. 

In  the  case  of  McCandlish  vs.  Keen,  13  Grat.,  615,  decided 
February  3,  1857.  C,  in  1849,  gives  a  deed  of  trust  upon  land 
to  secure  a  hona  fide  debt,  which  is  duly  acknowledged  and 
certified  for  record,  but  it  is  not  recorded  until  after  his  death. 
He  makes  his  will  in  December,  1849,  by  which  he  charges  his 
whole  estate  with  the  payment  of  his  debts ;  and  he  dies  in  1851, 
indebted  more  than  his  whole  estate  will  pay,  but  there  were 
no  judgment  creditors  at  his  death.  Held:  The  act  which  de- 
clares that  all  the  real  estate  of  a  party  dying  which  he  has 
not  subjected  by  his  will  to  the  payment  of  his  debts,  shall  be 
assets  for  the  payment  of  debts  in  the  order  in  which  personal 
estate  is  to  be  applied  does  not  apply,  except  subject  to  the 
charge,  to  the  real  estate  on  which  the  debtor  has  created  a 
hona  fide  lien,  which  is  good  against  himself.  C.  having  sub- 
jected his  whole  estate  to  the  payment  of  his  debts,  his  general 
creditors  must  take  the  real  estate  under  the  charge  in  the  will ; 
and  must  take  it  in  the  plight  and  condition  in  which  he  held 
it ;  and  it  is  equitable  assets,  though  the  statute  would  have  sub- 
jected it  to  the  payment  of  his  debts,  if  there  had  been  no  such 
charge  in  the  will. 

The  act  in  relation  to  creditors  and  purchasers  who  shall  be 
protected  against  unrecorded  deeds  does  not  include  creditors 
claiming  under  a  devise  for  the  payment  of  debts,  or  under  the 
statute  subjecting  real  estate  to  their  payment.  But  the  credi- 
tor who  may  avoid  such  a  deed  must  have  some  lien  by  judg- 
ment or  otherwise,  which  entitles  him  to  charge  the  subject 
conveyed  specifically. 

In  the  case  of  Pierce  vs.  Graham,  85  Va.,  227,  decided  Au- 
gust 16,  1888,  it  was  held :  Executor,  who  is  given  no  power  as 
to  the  realty  by  the  will  is  not  authorized  by  the  statute  to 
maintain  a  suit  against  the  heirs  to  sell  the  realty  to  pay  the 
debts ;  nor,  as  next  friend  to  the  infant  heirs,  uniting  with  the 
widow  to  compel  the  creditors  to  have  the  realty  sold  to  pay 
debts. 

In  the  case  of  Scott's  Executrix  vs.  Ashlin  et  als.,  86  Va.,  581, 
decided  January,  23,  1890,  it  was  held :  There  can  be  no  resort 
to  decedent's  real  estate  to  pay  his  debts  until  his  personalty 
has  been  exhausted.  When  that  has  been  exhausted,  whether 
by  devastavit  or  distribution,  the  real  estate  in  the  hands  of  his 
heirs  may  be  subjected. 

In  the  case  of  Pleasants  vs.  Flood's  Administrator  et  als.,  89 


392  Citations  to  the  Code  of  Vikginia. 

Va.,  96,  decided  June  16,  1892.  A  farm  encumbered  bj  trust 
and  other  liens  was  granted  by  husband  to  wife's  use.  She  en- 
joined sale  under  trust  deed,  alledging  it  had  been  satisfied,  and 
that  before  becoming  aware  of  its  satisfaction  she  had  made 
payments,  and  prayed  for  account  of  liens  and  payments.  Re- 
port showed  the  first  lien  to  be  the  trust  debt,  and  the  second 
her  own  for  moneys  paid  by  her.  Sale  was  decreed.  She  pur- 
chased the  land  and  paid  the  cash,  and  gave  her  bonds  for  the 
deferred  payment  and  then  died.  Her  heirs  petitioned  the 
court  to  require  her  bonds  to  be  paid  out  of  her  personal  estate, 
to  the  exoneration  of  the  land  which  descended  on  them.  Held : 
Under  the  circumstances,  the  land,  and  not  the  personalty  is 
primarily  bound  for  the  payment  of  those  bonds,  as  the  pi^r- 
chase  was  only  a  mode  of  getting  rid  of  the  liens  paramount  to 
those  owned  by  her,  and  was  a  personal  undertaking  that  was 
merely  collateral,  and  did  not  release  the  land  from  its  primary 
liability  under  the  trust  deed.  But  this  is  material  only  as  be- 
tween her  heirs  and  her  distributees. 

In  the  case  of  Deering  &  Co.  vs.  Kerf  oofs  Executor  et  als., 
89  Va.,  491,  decided  December  15,  1892,  it  was  held:  Code, 
Section  2665,  makes  decedent's  real  property  assets  for  pay- 
ment of  his  debts  in  the  order  in  which  his  personal  estate  is 
directed  to  be  applied ;  but  it  recognizes  his  right  to  charge  his 
land,  but  not  his  personalty,  for  such  of  his  debts  as  he  may 
prefer. 

Section  2666. 

In  the  case  of  Blow  vs.  Maynard,  Lawrence  vs.  Blow,  2  Leigh, 
30,  decided  March,  1880,  it  was  held :  A  father  makes  a  volun- 
tary and  fraudulent  conveyance  of  real  estate  to  his  children, 
and  dies,  leaving  other  real  estate  which  descends ;  upon  a  bill 
by  a  creditor  against  the  donees  and  heirs  at  law,  to  subject  the 
land  conveyed  and  land  descended  to  debt  of  the  donor  and  an- 
cestor, chancellor  may  decree  a  sale  of  both,  out  and  out,  to 
satisfy  the  creditor's  demand. 

In  the  case  of  Manns  vs.  Jblinn's  Administrator,  10  Leigh, 
93  (2d  edition,  97),  decided  February,  1839.  An  interlocutory 
decree  directs  a  sale  of  lands  to  satisfy  a  debt  in  a  case  where 
it  might  have  been  proper  to  decree  satisfaction  out  of  the  rents 
and  profits ;  but  this  was  not  a  point  controverted  in  the  court 
below,  or  in  any  way  brought  to  the  notice  of  the  court,  and 
though  the  party  had  ample  opportunity  to  apply  to  the  court 
to  alter  the  decree  in  that  particular,  he  did  not  apply  for  such 
alteration;  upon  appeal  to  this  court,  held:  The  decree  shall 
not  be  reversed  for  such  cause,  but  affirmed,  and  the  cause  re- 
manded with  direction  to  alter  the  decree,  and  direct  satisfac- 
tion out  of  the  rents  and  profits,  if  such  alteration  be  asked, 


Citations  to  the  Code  of  Yirginia.  393 

and  if  the  debt  can  be  satisfied  out  of  the  rents  and  profits  at  a 
reasonable  time. 

In  the  case  of  Ryan  a  Administrator  vs.  McLeod  et  als.,  32 
Grat.,  367  and  375,  decided  November,  1879.  Where  real  estate 
in  the  hands  of  heirs  is  sought  to  be  subjected  to  the  payment 
of  the  decedent  ancestor's  debts,  and  that  portion  assigned  to 
one  of  the  heirs  before  the  commencement  of  the  suit  has  been 
aliened  to  a  bona  fide  purchaser,  whether  absolutely  or  in  trust 
to  pay  his  debts,  and  that  heir  has  become  insolvent,  the  rest  of 
the  real  estate  in  the  hands  of  those  heirs  who  have  not  aliened 
it  is  liable,  not  only  for  the  proportionate  share  which  each  heir 
would  at  once  have  borne,  but  for  the  whole  debts  of  the  dece- 
dent, to  be  contributed  by  each  one  in  proportion  to  the  value 
and  extent  of  the  land  descended  to  him. 

In  March,  1875,  tlie  circuit  court  rendered  a  decree  that  the 
heirs  of  a  decedent,  who  had  not  aliened  the  land  of  their  father, 
were  liable  only  for  each  of  his  or  her  proportion  of  the  dece- 
dent's debts ;  fixed  the  amount  to  be  paid  by  each  of  them,  and 
in  default  of  such  payment  directed  commissioners  named  to 
sell  so  much  of  the  real  estate  of  each  as  was  necessary  to  pay 
his  or  her  proportion  of  the  debts,  the  sale  to  be  upon  a  credit  of 
one,  two,  and  three  years  ;  the  purchase-money  to  be  secured  by 
bonds  and  deed  of  trust  on  the  land,  and  the  commissioners  to 
repoi-t  their  proceedings  to  the  court  at  the  next  term.  On  a 
petition  filed  in  March,  1879,  by  a  creditor  of  a  decedent  for  a 
rehearing  of  said  decree,  held :  The  decree  of  March,  1875,  was 
not  a  final  but  an  interlocutory  decree,  and,  being  erroneous, 
should  be  reheard  and  reversed. 

Section  2667. 

In  the  case  of  Easley  et  als.  vs.  Barksdale  et  als.,  75  Va.,  274, 
decided  February  10,  1881.  There  is  a  creditor's  bill  against 
the  administrator  and  heirs  of  an  intestate  to  subject  his  estate 
to  the  payment  of  his  debts.  Pending  the  suit  one  of  the  heirs 
sells  and  conveys  the  land  received  from  the  estate  to  a  bona 
fide  purchaser  for  value,  having  no  actual  notice  of  the  pen- 
dency of  the  suit.  Held:  That  no  lis  pendens  having  been 
docketed,  the  land  is  not  liable  to  satisfy  the  grantor's  proposi- 
tion of  the  intestate's  debts. 

The  acts  in  relation  to  the  liability  of  real  estate  in  the  hands 
of  the  heirs  for  the  debts  of  the  ancestor,  and  the  necessity  and 
efi'ect  of  a  lis  pendens,  must  be  construed  together ;  and  they  re- 
quire a  lis  pendens  to  be  docketed  to  affect  a  purchaser  without 
actual  notice  of  the  pending  suit.  The  notice  which  under  the 
statute  will  affect  such  a  purchaser  is  actual  notice ;  constructive 
notice  is  not  sufiicient. 

If  a  report  of  the  accounts  of  a  personal  representative,  and 


394  Citations  to  the  Code  of  Virginia. 

of  the  debts  and  demands  against  the  decedent's  estate  has 
been  filed  in  the  office  of  the  court  wherein  the  order  conferring 
his  authority  was  made,  as  required  by  the  statute,  a  subsequent 
purchaser  may  reasonably  be  required  to  take  notice  of  it. 

Lands  sold  and  conveyed  by  an  heir  or  devisee  after  such  re- 
port filed,  will  be  held  liable  in  the  hands  of  a  purchaser  for  the 
debts  of  the  decedent ;  while  lands  sold  and  conveyed  to  a  pen- 
dente lite  purchaser,  without  actual  notice  of  the  lis  pendens,  will 
not  be  bound  by  such  lis  pendens  unless  the  provisions  of  the 
statute  are  complied  with. 

There  is  a  creditor's  suit  pending  against  the  administrator 
and  heirs  of  A.  to  subject  his  real  estate  to  the  payment  of  his 
debts.  In  the  same  court  there  is  a  suit  pending  by  another 
party  to  subject  the  lands  of  W.,  a  son  of  A.,  to  the  payment  of 
the  debts  of  W. ;  and  in  this  suit  there  is  a  sale,  under  a  decree, 
of  the  lands  of  W.,  which  he  had  inherited  from  A.,  and  J.y 
another  son  of  A.,  is  the  purchaser.  Held :  Upon  a  bill  by  J.,  so 
much  of  the  purchase-money  as  was  necessary  to  pay  W.'s  por- 
tion of  A.'s  debts  will  be  applied  to  that  purpose. 

Section  2668. 

In  the  case  oi  Brewis  et  als.  vs.  Laivson  et  als.,  76  Ya.,  36,  de- 
cided December  8,  1881,  it  was  held:  Judgment  by  default 
gainst  personal  representative  in  suit  to  which  heir  or  devisee 
is  not  a  party,  does  not  affect  heir  or  devisee,  and  is  not  evi- 
dence against  them  in  suit  to  subject  the  decedent's  real  estate. 

In  the  case  of  Watfs  et  als.  vs.  Taylor's  Administrator  et  als.,. 
80  Va.,  627,  decided  June  25,  1885,  it  was  held :  Judgment 
against  the  personal  representative  in  suit  to  which  the  heirs 
were  not  parties,  affects  not  the  heirs  for  want  of  privity,  and  ia 
not  evidence  against  them  in  suit  to  subject  the  decedent's  real 
estate,  and  does  not  alter  the  rule. 

Yet,  suit  against  personal  representatives,  jointly  with  heirs, 
etc.;  by  creditor  of  decedent  to  collect  out  of  real  estate  or 
otherwise,  bond  debt  whereupon  judgment  existed  against  per- 
sonal representatives,  is  maintained  by  evidence  other  than  said 
judgment,  though  said  judgment  be  set  forth  in  the  bill,  the 
heirs,  etc.,  having  as  full  opportunity  to  defend  against  the  debt 
as  though  no  judgment  existed. 

In  the  case  of  Dainger field  vs.  Smith,  83  Va.,  81,  decided 
March  31,  1887,  it  was  held :  Judgment  by  default  against  the 
personal  representative,  in  suit  wherein  the  heirs  are  not  parties, 
affects  not  the  heirs,  and  is  not  evidence  against  them  in  suit  to 
subject  decedent's  real  estate,  and  this  section  does  not  alter  the 
rule. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  588. 

In  the  case  of  Staple's  Executor  vs.  Staples,  85  Va.,  76,  de- 


Citations  to  the  Code  op  Vikginia.  39& 

cided  July  26,  1888,  it  was  held:  Only  judgments  rendered 
since  February  19,  1884,  against  personal  representatives  are 
prima  facie  evidence  against  decedent's  heirs  and  devisees. 


TITLE  XXXVI. 
CHAPTER  CXXI. 

Section  2676. 

Reference  to  3  Munf.,  198.  This  case  is  too  vague  to  be  used 
as  an  authority  for  anything  connected  with  this  section. 

In  the  case  of  Carter's  JExecutor  vs.  Cutting  et  rtx.,  5  Munf., 
223,  decided  November  19,  1816,  it  was  held :  When  a  commis- 
sioner stating  accounts  between  executors  and  the  estate  of  their 
testator,  if  one  of  them,  who  had  for  collection  the  evidences  of 
debts  due  the  estate  which  might  have  been  collected  by  him, 
be  dead,  his  representatives  cannot  object  to  his  estate  being 
charged  with  those  debts,  unless  the  means  be  furnished  of 
charging  the  surviving  executor  therewith. 

An  executor  ought  not  to  be  allowed  a  credit  for  paying  a 
debt  of  his  testator,  appearing  on  the  face  of  the  written  instru- 
ment intended  to  secure  it,  to  have  been  money  won  at  unlaw- 
ful gambling. 

In  the  case  of  Rootes  vs.  Stone,  2  Leigh,  650,  decided  April, 
1831.  An  attorney  at  law  is  employed  to  collect  debts,  and 
some  of  them  are  lost  to  his  client  through  his  neghgence. 
Held :  The  attorney  is  chargeable  for  the  principal  of  the  debt& 
lost,  but  not  with  interest  thereon. 

In  the  case  of  Txuistall  vs.  PollarcPs  Administrators,  11  Leigh, 
1,  decided  March,  1840,  it  was  held :  An  executor,  having  taken 
probate  of  testator's  mil  and  letters  testamentary  in  England,, 
and  collected  the  assets  of  testator's  estate  there  and  brought 
them  with  him  to  Virginia,  but  having  never  qualified  as  execu- 
tor in  Virginia,  is  liable  to  be  sued  by  the  legatees  in  the  court 
of  chancery  of  Virginia  for  an  account  of  his  administration, 
and  for  the  legacies  that  remain  unpaid. 

An  English  executor  collects  the  assets  of  testator's  estate  in 
England,  brings  them  with  him  to  Virginia,  and  dies  here  in 
1807,  indebted  to  testator's  estate,  without  having  qualified  in 
Virginia.  Held :  The  debt  he  owed  his  testator's  estate  is  entitled, 
in  the  administration  of  his  own  estate,  to  priority  over  all  other 
debts. 

In  the  case  of  Nelson's  Executor  y^,.  Page  et  als.,  7  Grat.,  160,  de- 
cided November  18, 1850,  it  was  held :  Under  the  circumstances, 
the  executor  held  not  responsible  for  a  debt  due  the  estate,  and 


396  Citations  to  the  Code  of  Virginia. 

lost  by  the  insolvency  of  the  debtor  occurring  after  the  testator's 
death. 

In  the  case  of  Zetelle  vs.  Myers,  19  Grat.,  62,  decided  Feb- 
ruary 23,  1869,  it  was  held :  When  an  agency  is  of  a  fiduciary 
character,  the  principle  may  sue  his  agent  in  equity  for  an  ac- 
count of  his  agency.  An  agent  to  manage,  lease  and  sell  pro- 
perty, and  pay  expenses  upon  it,  to  collects  debts  and  pay  over 
the  moneys  received  to  the  principal,  is  of  a  fiduciary  char- 
acter. 

Z.,  being  about  to  leave  the  country,  executes  a  power  of  at- 
torney, by  which  he  gives  to  M.  and  C.  the  amplest  power  to 
manage  and  dispose  of  all  his  property  here  for  his  benefit.  On 
the  same  day  Z.  and  his  wife  convey  to  M.  and  C.  a  house  and 
lot,  in  trust  to  lease  or  sell  the  same,  and  pay  over  the  proceeds 
as  received  to  Z.  The  deed  of  trust  and  power  of  attorney  be- 
ing designed  to  effect  one  common  object,  Z.  cannot  file  a  bill 
against  M.  and  C.  for  an  account  of  the  trust  subject  under  the 
deed,  and  bring  an  action  at  law  for  the  moneys  received  from 
the  personal  property  and  debts,  under  the  power  of  attorney, 
but  if  he  chooses  to  proceed  in  equity,  he  must  embrace  the  whole 
in  that  suit.  The  court  should  have  required  the  plaintiff  to 
elect  whether  he  would  amend  his  bill,  so  as  to  embrace  the 
whole  of  the  transactions,  and  dismiss  his  action  at  law,  or 
whether  he  would  prosecute  that  action  ;  and  upon  his  failure  to 
elect,  or  electing  to  prosecute  his  action  at  law,  should  have  dis- 
missed his  bin. 

In  the  case  of  B&rnhard  vs.  Maury  c&  Co.,  20  Grat.,  434,  de- 
■cided  March,  1871.  N.,  living  in  the  country,  employs  M.,  a 
broker  in  Richmond,  to  invest  his  money  in  Missouri  bonds. 
In  November,  1862,  M.  invests  at  $112.50,  and  February,  1863, 
he  invests  at  |125.  In  March,  N.  sends  a  claim  upon  the  Con- 
federate Government  to  M.  for  collection,  and  tells  of  other 
funds  which  will  be  paid  in  to  M.  in  May,  and  directs  him  to 
invest  in  Missouri  bonds.  M.  collects  the  claim  and  invests  it 
at  $160,  and  so  writes  to  N.  The  23d  May  the  funds  spoken 
of  by  N.  are  received  by  M.,  and  then  Missouri  bonds  have  ad- 
vanced seventy  or  eighty  per  cent,  above  the  last  investment, 
and  are  difficult  to  be  gotten.  On  the  29th  of  June  M.  writes 
to  N.  acknowledging  the  receipt  of  this  fund,  stating  that  Mis- 
souri bonds  were  then  at  220  to  235,  and  asks  whether  he  shall 
invest  at  the  advanced  price  when  to  be  had.  M.  receives  no 
answer  to  this  inquiry,  and  therefore  does  not  invest  the  money 
in  his  hands,  the  Missouri  bonds  continuing  to  advance  on 
price.  Held:  M.  was  justified  in  waiting  for  further  instruc- 
tions, and  is  not  liable  to  N.  for  the  loss. 

In  the  case  of  Davis  (Commissioner)  vs.  Harman  et  als.,  21 
•Grat.,  194,  decided  June,  1871,  it  was  held:    A  commissioner 


\ 


Citations  to  the  Code  of  Virginia.  397 

who,  under  the  direction  of  the  court,  collects  and  disburses 
Confederate  money,  and,  by  order  of  the  court,  retains  the 
balance,  which  is  in  controversy  between  disputing  lien  holders, 
until  the  rights  of  the  parties  are  litigated,  cannot  be  held  per- 
sonally liable  for  any  loss  that  may  be  incurred  in  consequence  of 
the  fund  perishing  on  his  hand  by  the  result  of  the  late  civil 
war. 

In  the  case  of  Meyer's  Executor  vs.  Zetelle,  21  Grat.,  733,  de- 
cided March,  1872.  Z.,  a  foreigner,  who  had  lived  some  years 
in  Richmond,  was  an  owner  of  a  house  and  lot  in  the  city,  and 
some  furniture,  and  he  held  some  debts  due  to  him,  and  among 
them  the  bond  of  P.  for  five  thousand  dollars,  bearing  interest, 
and  due  in  November,  1865,  secured  upon  a  house  and  lot.  Z. 
having  determined  to  leave  the  country  with  his  family  for  an 
indefinite  time;  on  the  9th  September,  1861,  executed  a  power 
of  attorney  to  M.  &  C,  by  which  he  conferred  on  them  the  most 
ample  powers  and  the  largest  discretion  for  the  management  of 
his  business  and  his  property.  On  the  same  day  Z.  and  his 
wife  conveyed  to  M.  &  C.  his  house  and  lot,  in  trust  to  rent  or 
sell  it  at  their  discretion,  and  pay  him  the  proceeds.  He  then 
left  the  country,  and  M.  &  C.  received  no  communication  from 
him,  and  had  no  knowledge  of  his  residence  until  1865,  when 
he  returned  to  Richmond.  In  the  meantime  they  received  pay- 
ment of  the  debts  due  Z.,  and  also  of  the  debt  of  F.  before  it 
fell  due,  and  they  sold  the  house  and  lot ;  and  in  1863  invested 
all  the  funds  in  their  hands  in  Confederate  bonds  for  Z.  There 
was  no  question  of  the  hona  fides  of  M.  &  C.  in  all  that  they 
did.  Held :  They  are  not  responsible  to  Z.  for  the  loss  which 
occun-ed  by  the  investment  in  Confederate  bonds,  nor  is  P.  lia- 
ble to  him  for  his  debt. 

An  agent  or  trustee  acting  within  his  power,  and  acting  in  good 
faith,  in  the  exercise  of  fair  discretion,  and  in  the  same  manner 
in  which  he  would  probably  have  acted  if  the  subject  had  been 
his  own,  ought  not  to  be  held  responsible  for  any  loss  accru- 
ing in  the  management  of  the  trust  fund.  Pre-eminent  know- 
ledge and  uncommon  foresight  are  not  required  in  a  trustee. 
Ordinary  men  are  to  be  compared  and  judged  by  the  standard 
of  ordinary  men.  Common  skill,  common  prudence,  and  com- 
mon caution  are  all  that  courts  have  required.  It  would  be  un- 
reasonable to  judge  of  the  conduct  of  an  agent  or  trustee  from 
subsequent  events.  His  conduct  ought  not  to  be  condemned  if 
it  flowed  from  an  honest,  though  uninformed  and  mistaken  judg- 
ment. 

In  the  case  of  Chapman' s  Adm.inistrators  vs.  Shepherd's  Ad- 
ministrator et  als.,  24  Grat.,  377,  decided  January,  1874,  it  was 
held :  Executors  who  fail  by  their  negligence  to  collect  a  debt 
due  to  their  testator  by  bond  under  a  penalty,  the  debtor  being 


598  Citations  to  the  Code  of  Virginia. 

good  for  the  money  at  the  death  of  the  testator,  and  continuing 
good  for  it  for  fourteen  years,  when  he  fails,  are  chargeable 
with  the  principal  and  the  interest  thereon  up  to  the  time  of 
the  failure  of  the  debtor ;  but  they  are  not  chargeable  with  in- 
terest since  that  time. 

In  the  case  of  Douglass  vs.  Stephenson's  Executor  et  als.,  75 
Va.,  747,  decided  October  14,  1880.  The  inquiry  in  every  case 
where  a  fiduciary  is  called  to  account,  and  a  liability  is  sought 
to  be  fixed  upon  him  is,  did  he  act  in  the  particular  transaction 
which  is  questioned  within  the  scope  of  his  powers,  with  good 
faith  and  ordinary  prudence?  If  he  did  so  act,  he  is  not  re- 
sponsible for  the  consequences  of  his  act,  even  though  it  re- 
sulted unexpectedly  in  the  loss  of  the  trust-subject,  or  any  part 
of  it. 

The  cases  in  which  this  court  has  held  it  a  breach  of  duty  in 
a  fiduciary  to  receive  Confederate  currency  in  discharge  of  ante- 
war  obligations,  were  all  cases  in  which  the  depreciation  had 
become  so  great  as  of  itself,  when  not  attended  with  circum- 
stances of  justification,  to  be  evidence  either  of  bad  faith  or  lack 
of  common  prudence — cases  generally  in  which  money  was  col- 
lected either  in  1863  or  1864.  But  the  same  cases  show  that 
«ven  when  the  currency  was  greatly  depreciated,  the  fiduciary 
might  be  well  justified  in  receiving  it,  on  account  of  the  neces- 
sities of  the  estate  he  represented,  the  condition  of  the  debt,  or 
by  reason  of  other  special  circumstances  making  the  collection 
proper. 

In  the  case  of  Lovett  vs.  Thomas's  Administrator  et  als.,  81 
Va.,  245,  decided  December  17,  1885,  it  was  held:  Court  of 
equity  wiU  not  hold  fiduciaries  liable  for  losses  incurred  in 
managing  a  trust  where  they  acted  in  good  faith,  in  the  exer- 
cise of  reasonable  discretion,  and  as  they  would  probably  have 
done  in  their  own  matters. 

Administrator  is  not  bound  to  sue  for  debt  due  the  estate, 
when  it  is  apparent  that  the  debtor  is  unable  to  pay  it. 

In  the  case  of  Smith  vs.  Pattie,  81  Va.,  654,  decided  April  15, 
1886,  it  was  held:  ^Tiere  administrator  is  sole  heir  and  dis- 
tributee of  his  intestate,  and  there  are  judgments  against  him 
individually  which  attached  to  the  intestate's  estate  as  soon  as 
it  descended  upon  his  said  heir  and  distributee,  and  there  are 
debts  against  the  intestate  which  are  barred  by  the  statute  of 
hmitations,  the  administrator  cannot  revive  those  debts  and  re- 
pel the  bar  by  any  promise  in  writing,  or  otherwise;  but  is 
bound  to  plead  the  statute  against  those  debts,  and  if  he  re- 
fuses or  fails  to  do  so,  it  is  the  right  of  the  judgment-creditor, 
by  reason  of  his  interest  in  the  fund,  to  interpose  the  plea. 

In  the  case  of  Turpin  et  als.  vs.  Chesterfield  C.  <&  I.  M.  Co., 
82  Va.,  74,  decided  June  17,  1886.     An  administrator  acting  in 


Citations  to  the  Code  of  Virginia.  399 

good  faith,  in  1863  compromised  at  fifty  cents  on  the  dollar  in 
the  currency  of  the  country,  an  unestablished,  unadmitted  claim, 
not  a  lien,  dated  December,  1840,  of  his  intestate's  estate, 
which,  though  it  had  been  asserted  for  more  than  twenty 
years,  and  been  reported  by  a  commissioner  that  length  of  time 
before,  yet  had  met  with  some  adverse  decision  in  the  circuit 
court,  and  was  affected  by  all  the  uncertainties  of  flagrant  war. 
Suit  by  the  distributees  charging  the  administrator  and  the 
debtor  with  collusive  devastavit  nearly  twenty  years  later  was 
dismissed  by  the  circuit  court.  On  appeal,  held :  The  compro- 
mise was  valid,  and  no  devastavit  was  committed,  and  the  suit 
was  properly  dismissed. 

In  the  case  of  MilVs  Administrators  et  als.  vs.  Taney's  Admin- 
istrators, 83  Va.,  361,  decided  March,  1887,  it  was  held:  T.'s  ad- 
ministrator qualified  in  1870,  and  soon  after  entrusted  for  collec- 
tion to  C,  an  attorney  of  competence  and  good  standing,  a  note 
due  to  the  estate.  C.  collected  the  greater  part  and  handed  it 
over  to  the  estate,  but  allowed  the  note  to  run  out  of  date  with- 
out bringing  suit.  The  administrator  learned  this  fact  in  1887, 
whilst  C.  was  still  solvent,  but  wholly  failed  to  take  steps  against 
C.  to  make  the  money  out  of  him,  and  the  balance  of  the  debt 
became  lost  to  the  estate.  In  suit  against  the  administrator  for 
his  laches,  he  became  liable  for  the  debt,  not  for  entrusting  the 
note  to  C.  for  collection,  but  for  his  failure  to  proceed  during 
C's  solvency  to  make  the  money  out  of  him. 

In  the  case  of  Radford  vs.  Fowlkes,  85  Va.,  820,  decided 
February  21,  1889,  it  was  held :  This  section  provides  that  ad- 
ministrator shall  have  no  credit  for  a  claim  which  he  pays, 
knowing  the  facts  whereby  recovery  could  be  prevented,  and 
does  not  require  him  to  plead  the  statute  of  limitations  to  a 
claim  apparently  barred,  where  he  knows  facts  making  the 
statute  inapplicable. 

In  the  case  of  Turner's  Administrator  vs.  Thorn  {Trustee),  89 
Va.,  745,  decided  March  16,  1893,  it  was  held :  To  entitle  one 
joint  obligor  to  recover  from  his  co-obhgor  money  paid  by  him 
in  excess  of  his  proportion,  the  payment  must  have  been  made 
upon  a  debt  for  which  the  latter  was  legally  liable  at  the  time 
of  the  payment,  and  which  the  obligor  paying  was  compellable 
to  pay,  and  not  upon  a  debt  that  was  barred  as  to  the  obligor 
sought  to  be  charged,  and  who  may  be  as  in  case  here,  a  per- 
sonal representative,  forbidden  to  pay  under  Code,  Section 
2676,  without  making  himself  personally  liable  to  extent  of 
such  payment. 

Section  2678. 

In  the  case  of  Robertson  et  als.  vs.  ArcJier  [Administrator), 
etc.,  5  Rand.,  319,  decided  June,  1827,  it  was  held:  The  rule 
that  where  a  party  relies  on  an  account .  furnished  by  the  other 


400  Citations  to  the  Code  of  Virginia. 

party,  and  claims  the  benefit  of  credits,  he  is  bound  to  take  all 
together  and  admit  the  debits  also,  unless  he  can  surcharge  and 
falsify  it  by  proofs,  is  not  applicable  to  an  executor's  account, 
nor  to  any  other  case  where  there  is  a  trust  or  confidence. 

In  the  case  of  Ward  vs.  Funsten,  86  Va.,  359,  decided  No- 
vember 14,  1889,  it  was  held :  A  trustee  who  failed  to  make  an- 
nual settlements,  or  any  statement  to  the  beneficiaries,  as  di- 
rected by  Code  1887,  this  section,  whose  only  excuse  was  that 
he  did  not  deem  it  necessary,  as  he  had  annually  paid  the  in- 
terest. Held:  Not  entitled  to  commissions,  and  his  right  to 
future  commissions  will  depend  upon  his  future  conduct. 

In  the  case  of  Perdue  s  Administrator  vs.  Dillon,  89  Va.,  182, 
decided  June  30,  1892,  it  was  held :  Where  intestate  in  her  life- 
time by  deed  of  gift  disposed  of  her  entire  personal  property 
so  that  there  was  nothing  to  go  or  that  did  go  at  her  death  into 
the  hands  of  her  administrator.  Held :  A  bill  against  him  for 
an  accounting  should  have  been  dismissed. 

In  the  case  of  Fickliris  Administrator  vs.  Rixey,  89  Va.,  832, 
decided  April,  6,  1893,  it  was  held :  Wife's  right  of  dower, 
whether  inchoate  or  consummate,  is  an  existing  lien,  and  a 
covenant  against  encumbrances  is  broken  by  its  existence.  This 
lien  is  inferior  to  all  which  attached  prior  to  the  marriage,  but 
superior  to  those  acquired  after  marriage  without  her  consent. 

Such  settlements  on  a  wife  for  value  are  valid  in  equity,  though 
void  at  common  law,  and  relinquishment  of  her  right  of  dower  is 
a  good  consideration  to  the  extent  of  its  value  as  against  the 
husband's  creditors. 

In  the  case  here,  as  the  value  of  the  dower  relinquished  ex- 
ceeded that  of  the  land  settled  on  the  wife,  she  and  her  heirs 
at  law  after  her  death  were  entitled  to  the  land  free  from  all 
liability  for  her  husband's  debts. 

Section  2679. 
_  In  the  case  of  Wood  {Executor)  vs.  Garnett,  6  Leigh,  271,  de- 
cided April,  1835,  it  was  held  :  An  executor,  however  meritorious 
his  administration,  is  not  entitled  to  commission  if  he  fails  to 
settle  and  return  his  accounts  of  administration,  according  to 
the  statute  of  1824-'25. 

In  the  case  of  Boyd's  Executor  vs.  Boyd's  Heirs,  3  Grat.,  113, 
decided  July,  1846,  it  was  held  (p.  115) :  Executors  living  more 
than  two  years  after  the  passage  of  the  act,  and  not  settling  their 
accounts,  are  not  to  be  allowed  commissions. 

Trustees  are  not  embraced  in  the  act  of  February  16,  1825, 
and  do  not  forfeit  their  commissions  by  failing  to  settle  their 
accounts. 

In  the  case  of  Strother  et  als.  vs.  Hull  et  als.,  23  Grat.,  652, 
decided  June,  1873,  it  was  held :  In  1851  H.  dies,  leaving  sev- 


Citations  to  the  Code  of  Vikginia.  401 

eral  infant  children  and  a  considerable  estate,  real  and  per- 
sonal. He  directs  by  bis  will  that  on  the  marriage  of  his  eldest 
daughter,  Ann,  she  shall  have  possession  of  the  home  place  if 
she  will  keep  the  younger  children  with  her  and  take  good  care 
of  them ;  and  this  she  does.  He  directs  his  executor  to  manage 
his  estate  until  January  1,  1861,  when  it  is  all  to  be  equally 
divided  amongst  his  children.  S.,  the  husband  of  Ann,  becomes 
administrator  c.  t,  a,,  takes  possession  of  the  estate  and  does 
not  invest  the  money,  nor  does  he  settle  his  administration  ac- 
count. S.  not  having  settled  his  accounts  as  administrator,  and 
showing  no  sufficient  reason  for  his  failure  to  do  so,  is  not  to  be  al- 
lowed commissions  except  upon  receipts  after  January  1,  1860. 

In  the  case  of  Moses  et  als  vs.  Harfs  A  dministrators^  25  Grat., 
795,  decided  February  4,  1875,  it  was  held :  A  personal  repre- 
sentative will  be  entitled  to  his  commissions  upon  moneys  re- 
ceived by  him  during  the  war,  though  he  did  not  settle  his 
accounts  till  after  the  war. 

In  the  case  of  Lovett  y&.  Thomas'  Administrator  et  als.j  81 
Va.,  245,  decided  December  17,  1885,  it  was  held :  Failure  of 
personal  representative  to  settle  his  account  does  not  neces- 
sarily work  forfeiture  of  commissions.  To  refuse  or  to  allow 
them  rests  with  the  court  under  the  circumstances  of  each  case. 
And  where  under  Code  1873,  Chapter  128,  Section  7,  he  yearly 
laid  his  accouuts  before  the  commissioner  of  accounts,  the 
failure  of  that  officer  to  audit,  state,  and  report  them  cannot 
lose  him  his  commission. 

In  the  case  of  Trevelyan's  Administrators  vs.  Lofft,  83  Va., 
141,  decided  April  14,  1887,  it  was  held:  Since  March  1,  1867, 
the  allowance  of  fiduciary  commissions  is  discretionary  with 
the  court,  they  are  not  absolutely  forfeited.  This  is  the  case 
cited  as  11  Va.  Law  Journal,  610. 

See  the  case  of  Ward  vs.  Funsten,  86  Va.,  359,  quoted  supra^ 
Section  2678. 

Section  2687. 

In  the  case  of  The  Bank  of  Virginia  vs.  Craig,  6  Leigh,  399, 
decided  May,  1835,  it  was  held:  If  a  guardian  unnecessarily 
sell  bank  stock  belonging  to  his  ward,  and  appropriate  the  pro- 
ceeds, he  and  his  sureties  shall  be  held  to  replace  the  stock,  or 
account  for  and  pay  its  present  value,  and  the  amount  of  divi- 
dends thereon  accrued  since  the  sale  was  made ;  and,  in  such 
case,  there  shall  be  no  commissions  allowed  on  the  value  of  the 
stock,  even  in  favor  of  the  guardian's  sureties,  but  commissions 
shall  be  allowed  on  the  dividends. 

In  the  case  of  Greenville  Justices  at  the  Relation  of  JRohinson^s 

Administrator  vs.    Williamson  el  als.,   12  Leigh,  93,  decided 

March,  1841.     In  debt  on  an  administration  bond  against  the 

administrator  and  his  sureties,  defendant  plead  in  bar,  that  upon 

26 


402  Citations  to  the  Code  of  Virginia. 

petition  of  G.,  one  of  the  sureties  to  the  county  court,  setting  forth 
that  he  was  bound  as  one  of  the  sureties  of  the  administrator, 
and  conceived  himself  in  danger  of  suffering  thereby,  and  pray- 
ing the  court  for  relief,  the  administrator  was  required  by  the 
order  of  court  to  give  a  new  bond,  and  did  so  accordingly  with 
another  person  as  his  surety,  which  new  bond  was  executed  in 
open  court  on  the  same  day  of  the  order  requiring  such  bond, 
was  in  a  penalty  equal  to  that  of  the  first  bond,  was  made  pay- 
able to  the  justices  then  sitting,  and  was  duly  executed  and 
conditioned  as  the  law  directs;  whereby,  and  by  force  of  the 
statute,  all  the  sureties  in  former  bond  were  discharged.  Plain- 
tiff's reply  nul  tiel  record.  And  defendants  show  an  entry  on 
the  minute-book  of  the  county  court,  stating  that  on  motion  of 
G."  against  the  administrator  for  county  surety,  the  defendant 
appeared  in  court,  acknowledged  summons,  and  rendered  J.  M.  as 
security,  whereupon  it  was  ordered  that  said  G.  be  dismissed 
from  further  suretyship ;  and  show  also  a  new  bond,  executed 
by  the  administrator  and  J.  M.,  his  surety,  bearing  even  date 
with  the  entry  on  the  minute-book,  made  payable  to  justices  then 
sitting,  in  proper  penalty  and  with  proper  condition  required 
by  the  statute  in  a  new  bond  in  such  case,  with  an  endorse- 
ment thereon  made  by  the  clerk  that  it  was  acknowledged  on 
the  day  of  the  date.  Held:  The  plea  not  conforming  to  the 
record  in  the  minute  book  there  is  no  such  record. 

In  the  case  of  Sayers  vs.  Cassell  et  als.,  23  Grat.,  525,  decided 
June,  1873,  it  was  held :  A  guardian  of  an  infant  having,  when 
he  was  appointed,  given  a  bond  with  sureties,  afterwards,  with- 
out a  rule  upon  him,  or  an  order  of  the  court  requiring  it,  comes 
into  court  and  gives  another  bond  with  other  sureties.  The  last 
bond  is  valid,  and  relates  back  to  his  appointment  as  guardian, 
and  the  sureties  in  the  first  bond  discharged,  and  are  not  neces- 
sary or  proper  parties  to  a  suit  by  the  ward  against  the  guar- 
dian and  his  sureties  for  the  settlement  of  his  accounts. 

In  the  case  of  Reynolds  vs.  Zink,  27  Grat.,  29,  decided  Decem- 
ber 19, 1876,  it  was  held :  There  must,  of  necessity,  be  vested  in  the 
court  a  very  large  discretion,  and  while  it  is  a  legal  discretion, 
to  be  exercised  in  a  proper  case,  an  appellate  court  ought  not  to 
interfere,  except  in  a  case  where  manifest  injustice  has  been 
done,  or  when  it  is  plain  that  a  proper  case  has  not  been  made 
for  the  exercise  of  the  powers  which  the  law  has  specially  con- 
ferred on  the  court  from  which  the  fiduciary  derives  his 
authority. 

In  the  case  of  Sage  vs.  Hammond,  27  Grat.,  651,  decided 
August  2,  1876,  it  was  held :  In  a  bill  by  infants  against  their 
guardian  for  an  account  and  payment,  it  being  shown  in  the 
cause  that  the  guardian  is  wholly  unfit  for  the  trust,  the  court 
may  appoint  a  receiver  to  collect  and  receive  the  property  of 


Citations  to  the  Code  of  Virginia.  403 

the  wards,  and  require  the  guardian  to.  pay  over  to  him  the 
money  of  his  wards  in  his  hands  and  deliver  to  him  the  pro- 
perty of  his  wards. 

The  reference  to  32  Grat.,  474-'75,  is  error. 

Section  2693. 

In  the  case  oiWhitehead's  Administrator  vs.  Whiteliead  et  als., 
23  Grat.,  376,  decided  March,  1873,  it  was  held:  The  provi- 
sions of  Section  16,  Chapter  132,  Code  of  1860,  prescribing 
what  shall  be  done  by  a  commissioner  in  settling  the  accounts 
of  fiduciaries,  apply  to  the  report,  regular  or  special,  mentioned 
in  Section  34  of  the  same  chapter,  and,  therefore,  under  this 
Section  34,  a  county  court  is  not  authorized  to  make  any  order 
for  investing  or  loaning  out  the  money  or  funds  therein  referred 
to,  unless  the  commissioner  has  previously  conformed  to  the 
provisions  of  Section  16,  by  posting  the  notice  as  therein  re- 
quired. 

If  in  such  a  case  the  order  is  made  by  the  county  court  without 
the  report  required  by  the  statute,  the  county  court  has  juris- 
diction on  the  motion  of  the  parties  whose  money  is  invested 
upon  notice  to  the  other  party  to  annul  the  order. 

Section  2695. 

In  the  case  of  Lindsay  vs.  ITowerton,  2  H.  &  M.,  9,  decided 
September  9,  1807,  it  was  held:  An  executor  or  administrator 
ought  to  be  credited  in  his  administration  account  for  fees  paid 
to  counsel,  notwithstanding  those  fees  were  more  than  the  law 
allowed. 

In  the  case  of  Nimrnds  Executor  vs.  The  Commonwealth,  4 
H.  &  M.,  57,  decided  May,  1809,  it  was  held :  Executors  and 
administrators  ought  to  be  allowed  in  their  accounts  all  reason- 
able charges  and  disbursements  for  the  benefit  of  the  estate  they 
represent,  and  a  reasonable  recompense  for  their  personal  trouble, 
in  preference  to  any  creditor  of  the  decedent.  The  Common- 
wealth's taxes  in  the  property  of  the  decedent,  the  expense  of 
recovering  a  run-away  negro  whose  value  is  credited  to  the 
estate,  money  paid  for  the  hire  of  a  slave  (hired  by  the  execu- 
tor or  administrator)  to  make  a  crop  on  the  land  of  the  dece- 
dent, under  the  care  of  the  executor  or  administrator,  the  pro- 
ceeds of  such  crop  being  credited  to  the  estate,  are  reasonable 
eharges  and  disbursements. 

It  seems  that  charges  appearing  to  be  just  and  legal  in  an  «« 
parte  settlement  of  an  administration  account  by  commissioners 
appointed  by  the  court  which  granted  the  administration,  and 
passed  by  such  court  (the  commissioners  having  reported  that 
vouchers  were  produced  to  justify  such  charges),  are  to  be  re- 
ceived prima  facie,  as  evidence  in  favor  of  the  executor  or  ad- 


404  Citations  to  the  Code  of  Virginia. 

ministrator,  and  that  the  burden  of  proof  lies  on  the  party  who- 
would  impugn  them. 

In  the  case  of  Hooper  vs.  Boyster,  1  Munf.,  119,  decided 
April,  1810,  it  was  held  :  Proof  of  parol  declarations  of  a  guar- 
dian that  she  did  not  intend  to  charge  her  ward  for  board,  is 
admissible  to  repel  a  charge  for  board  in  her  lifetime,  exhibited 
by  her  personal  representatives  after  her  death.  But  in  such 
case  she  ought  not  to  be  charged  with  interest  on  a  sum  of 
money  recieved  for  the  ward,  unless  such  interest  would  exceed 
the  amount  of  a  reasonable  compensation  for  board. 

A  guardian  may  be  allowed  for  moneys  paid  and  advanced 
for  the  clothes,  schooling,  and  other  necessary  expenses  of  the 
ward,  out  of  the  principal  of  such  ward's  estate,  if  it  appear 
that,  from  extraordinary  circumstances,  such  disbursements 
were  unavoidable  without  culpable  neglect  on  the  part  of  such 
guardian,  otherwise  such  allowance  ought  to  be  made  out  of  the 
profits  only. 

Money  received  by  a  guardian  for  a  ward  during  the  paper 
money  times,  ought  to  be  reduced  by  the  scale  of  depreciation,  to 
be  appHed  as  on  the  last  day  of  the  year  in  which  it  was  received. 

A  reasonable  time  ought  to  be  allowed  a  guardian  to  put  the 
money  of  a  ward  out  at  interest,  and  in  this  case  six  months 
was  considered  a  reasonable  time. 

If  money  was  received  by  a  guardian  for  a  ward  within  six 
months  previous  to  the  1st  day  of  January,  1777  (when  the  scale 
of  depreciation  commenced),  it  should  be  reduced  according  to 
the  scale,  as  at  the  end  of  six  months  from  the  time  when  re- 
ceived. 

See  HipkinsYS.  Bernard  {Executor  of  Hipkins),  cited  this  Sec- 
tion for  reference  to  4  Munf.,  83. 

In  the  case  of  Newton  vs.  Poole,  12  Leigh,  112  (reference  to 
140)  there  is  nothing  definite  on  this  point,  it  seems  to  have 
been  used  here  by  error  from  some  other  section. 

In  the  case  of  McCall  vs.  Peachey's  Administrators,  3  Munf., 
288,  decided  January  25,  1812,  it  was  held:  Where  an  ex-parte 
settlement  of  an  administration  account  has  taken  place  before 
commissioners  appointed  by  a  court  in  which  the  executor  or 
administrator  qualified,  if  the  legatees  afterwards  bring  a  suit  in 
chancery  for  a  new  examination  and  settlement  of  such  account, 
the  vouchers  in  support  thereof,  if  they  be  not  ostensible,  should 
be  presumed  to  have  existed,  and  the  onus prohandi  is  on  the 
adverse  party. 

But  it  seems  the  executor,  or  administrator,  may  be  required 
to  produce  the  vouchers  unless  he  declare  on  oath,  or  otherwise 
prove  that  they  were  deposited  with  the  clerk  of  such  court,  at 
or  after  examination  of  the  account  by  the  commissioners,  and 
have  not  come  to  his  possession  since. 


Citations  to  the  Code  of  Virginia.  405 

In  such  case,  if  the  vouchers,  or  official  copies  of  them  be  pro- 
duced, the  plaintiffs  may,  nevertheless,  controvert  the  articles 
intended  to  be  justified  by  them.  An  article  ought  to  be  al- 
lowed on  the  oath  of  the  defendant,  if  it  be  of  such  a  nature 
that  the  expense,  probably,  must  have  been  incurred,  or  that, 
perhaps,  a  voucher  for  it  could  not  have  been  procured;  for 
example :  Mourning  for  the  widow,  midwife  fees,  services  per- 
formed by  a  negro  carpenter,  and  the  like. 

For  reference  to  12  Leigh,  140,  see  the  case  of  Newton  vs. 
Poole,  cited  sujyra,  this  Section. 

In  the  case  of  Crranherry  {Executor)  vs.  Josiah  and  James 
Granheny,  1  Washington,  246,  decided  at  the  fall  term,  1793,  it 
was  held :  The  executor  is  entitled  to  credit  for  five  per  cent, 
commissions  on  his  receipts  for  each  year  before  the  accounts 
are  closed,  though  the  testator  bequeathed  him  a  specific  legacy 
as  being  his  nephew. 

In  the  case  of  Jones  {Executor)  vs.  Williams,  2  Call,  103  (2d 
edition,  85),  decided  October  17,  1799,  it  was  held:  Executors 
who  appear  to  have  made  no  advantage  by  it  will  not  be  de- 
nied justice  for  having  failed  to  make  up  an  account  of  their 
administration,  though  strictly  speaking  it  is  perhaps  their  duty. 

Commissions  are  not  allowed  an  executor  where  a  legacy  is 
given  him. 

In  the  case  of  Jones  {Exectitor)  vs.  Jones,  1  Munf.,  150,  de- 
cided April  17,  1810,  it  was  held :  An  executor,  having  delivered 
up  the  estate  generally,  and  the  management  thereof,  to  one  of 
the  residuary  legatees  for  his  benefit  and  that  of  his  co-legatee, 
nine  years  and  ten  months  afterwards  having  elapsed  before  he 
was  summoned  to  render  an  account,  the  greater  part  of  his 
executorship  having,  moreover,  been  during  the  Revolutionary 
War,  and  the  settlement  taking  place  after  his  death.  Held: 
It  is  unreasonable  rigor  to  exact  vouchers  for  many  items  in  his 
account,  which  appeared  probably  just,  though  not  supported 
by  proof. 

Where  the  failure  to  bring  an  executor  to  a  settlement  ap- 
pears to  have  proceeded  from  neglect  of  the  residuary  legatees, 
without  any  wilful  default  on  his  part,  interest  ought  not  to  be 
charged  on  the  balance  due  from  him  to  the  estate,  except  from 
the  date  of  the  decree  ;  neither  in  such  case  ought  interest  to  be 
allowed  him  on  payments  to  the  legatees  before  the  decree, 
though  made  in  bonds  which  carried  interest. 

Under  certain  circumstances  a  commission  of  seven  and  one- 
half  per  cent,  may  be  allowed  an  executor  on  all  his  receipts 
and  disbursements ;  the  real  and  personal  estate  having,  in  obe- 
dience to  the  directions  of  the  will,  been  kept  together  and 
managed  by  him. 

In  the  case  of  Triplet€s  Executors  vs.  Jameson^  2  Munf.,  242, 


406  Citations  to  the  Code  of  Vieginia. 

decided  April  23,  1811,  it  was  held:  A  commission  of  more 
tban  five  per  cent,  on  the  amount  of  sales  and  collections  ought 
not  to  be  allowed  an  executor,  except  upon  peculiar  circum- 
stances. 

In  the  case  of  Cavendish  vs.  l^leming,  3  Munf.,  198,  decided 
March  20,  1812,  it  was  held :  An  executor  may  reasonably  be 
allowed  a  commission  of  10  per  cent,  on  moneys  received  by 
him,  when  the  debts  were  very  small  and  numerous,  and  the 
debtors  presumed  to  have  been  much  dispersed. 

In  the  case  of  McCall  vs.  Peachy" s  Adininistrators,  3  Munf., 
288,  decided  January  26,  1812,  it  was  held  :  In  this  case,  under 
circumstances  of  extraordinary  trouble  attendant  on  the  admin- 
istration, the  administrator  was  allowed  a  commission  of  10  per 
cent,  on  all  specie  received  by  him,  in  full  satisfaction  for  re- 
ceiving, putting  out,  and  paying  away  the  same,  as  also  for  his 
trouble  and  services  in  the  administration  and  management  of 
the  estate,  such  commission  to  be  allowed  only  once  on  receiv- 
ing the  same  sum  of  money ;  and  as  to  the  paper  money,  a  com- 
mission was  allowed  of  5  per  cent,  on  the  value  thereof  when 
received,  and  the  same  on  the  value  thereof  when  paid  away, 
according  to  the  legal  scale  of  depreciation. 

In  the  case  of  HipJcins  vs.  Bernard  {Executor  of  Ilipkins),  and 
Bernard  vs.  Ilipkins  et  als.,  4  Munf.,  83,  decided  January  13, 
1813,  it  was  held :  An  execij^or  may  be  allowed  a  commission 
for  turning  bonds,  or  other  debts  payable  to  his  testator,  into 
mortgages  (without  any  actual  receipt  of  the  money),  and  de- 
livering such  mortgages  to  the  legatees. 

An  executor  is  entitled  to  a  commission  upon  sales  of  crops 
made  by  him  upon  the  lands  of  his  testator,  the  proceeds  there- 
of being  lawfully  received  and  accounted  for  by  him,  and  also 
upon  money  found  in  the  house,  and  disbursed  by  him  for  the 
use  of  the  family,  or  invested  in  bank  stock. 

Under  circumstances,  an  executor  may  be  allowed  expenses  of 
administration  (including  clerk  hire,  rent  of  counting-room,  and 
postages),  in  addition  to  his  commission  of  5  per  cent. 

In  the  case  of  Carter's  Executor  vs.  Cutting  et  ux.,  5  Munf., 
223,  decided  November  19,  1816,  it  was  held :  Although,  under 
peculiar  circumstances,  an  allowance  may  be  made  to  executors, 
in  addition  to  the  commissions  given  to  attorneys  for  collecting 
debts  confided  to  them,  such  additional  commissions  ought  not, 
in  general,  to  be  allowed  where  the  debtors  reside  in  or  near  the 
neighborhood  of  the  executors,  who  consequently  might  collect 
the  moneys  themselves. 

In  the  case  of  Bank  of  Virginia  vs.  Craig,  6  Leigh,  399,  de- 
cided May,  1835,  it  was  held,  p.  437 :  If  a  guardian  unnecessa- 
rily sell  bank  stock  belonging  to  his  ward  and  appropriate  the 
proceeds,  he  and  his  sureties  shall  be  held  to  replace  the  stock, 


Citations  to  the  Code  of  Virginia.  407 

or  account  for  and  pay  its  present  value,  and  the  amount  of 
dividends  thereon  accrued  since  the  sale  was  made;  and,  in 
such  case,  there  shall  be  no  commissions  allowed  on  the  value 
of  the  stock,  even  in  favor  of  the  guardian  sureties,  but  com- 
missions shall  be  allowed  on  the  dividends. 

In  the  case  of  Farneyhoxigh  vs.  Dickerson,  2  Rob.,  582,  de- 
cided December,  1843,  it  was  held :  As  a  general  rule  an  execu- 
tor is  not  entitled  to  commission  on  the  amount  of  debt  due 
from  him  to  the  testator,  and  credited  to  the  estate  in  executo- 
rial account. 

The  commissions  of  an  executor  should  not  be  on  the 
amount  of  his  disbursements.  He  ought  generally  to  be  allowed 
a  commission  on  the  amount  of  the  credits  in  his  account,  ex- 
cept on  a  credit  for  a  debt  due  from  him  to  the  testator. 
Though  some  of  the  credits  are  for  bonds  due  the  estate  that 
were  passed  over  by  the  executor  to  legatees,  and  voluntarily 
received  by  the  latter,  commissions  will  nevertheless  be  allowed 
the  executor  on  the  amount  of  such  bonds. 

In  the  case  of  tlayco7nV s  Legatees  vs.  ClaycomVs  Executors, 
10  Grat.,  589,  decided  January,  1854,  it  was  held:  Where  one 
of  two  .executors  perform  all  the  work  of  the  administration,  he 
may  be  allowed  all  the.  compensation,  and  it  is  not  for  the  lega- 
tees to  object  to  this. 

In  the  case  of  Boyd's  Sureties  vs.  Ogleshy  et  als.,  23  Grat., 
674,  decided  June,  1873,  it  was  held :  The  amount  of  commis- 
sions to  be  allowed  to  an  administrator  or  executor,  is  not  fixed 
by  law,  and  though  five  per  cent,  on  receipts  is  generally  allowed, 
yet  this  allowance  may  be  increased,  and  the  court  of  probate 
is  the  most  competent  tribunal  to  make  the  allowance,  and 
this  court  will  be  disinclined  to  disturb  the  allowance,  espe- 
cially after  a  long  acquiescence  in  it  by  the  distributees  of  the 
estate. 

In  the  case  of  Lovett  vs.  Thomas'  Administrator  et  als.,  81 
Va.,  245,  decided  December  17,  1885,  it  was  held:  Failure  of 
personal  representative  to  settle  his  accounts  does  not  neces- 
sarily work  forfeiture  of  commissions.  To  refuse,  or  allow  them, 
rests  with  the  court  under  the  circumstances  of  each  case ;  and 
where  under  Code  1873,  Chapter  128,  Section  7,  he  yearly  laid 
his  accounts  before  the  commissioner  of  accounts,  the  failure 
of  that  officer  to  audit,  state,  and  report  them,  cannot  lose  him 
his  commission. 

Where  testator  directs  his  executor  to  manage  his  farms  and 
distribute  the  profits  among  his  grandchildren,  when  of  age, 
the  executor  should  not  be  charged  with  compound,  but  only 
with  simple  interest  upon  the  yearly  balances  left  over  in  his 
hands,  unless  testator  directed  that  those  balances  should  be  in- 
vested in  interest-bearing  securities. 


408  Citations  to  the  Code  of  Virginia. 

See  the  references  to  Section  2606. 

For  reference  to  1  Wash.,  246,  see  the  case  of  Granherry 
{Executor)  vs.  Jodah  and  James  Granher^ry,  cited  supra^  this 
section. 

For  reference  to  2  Call,  105,  106,  see  the  case  of  Jones  {Ex- 
ecutor) vs.  Williams,  quoted  supra,  this  section. 

For  the  reference  to  1  Munf.,  150,  see  the  case  of  Jones  (Ex- 
ecutor) vs.  Jones,  cited  supra,  this  section. 

In  the  case  of  Dillard  vs.  Tomlinson  et  als.^  1  Munf.,  183,  de- 
cided April,  1810,  it  was  held:  An  executor  or  administrator, 
hiring  slaves  belonging  to  the  estate  of  his  testator  or  intestate, 
ought  not  to  be  charged  with  interest  on  such  hire  from  the  date 
it  became  due  (no  proof  appearing  that  it  was  then  collected,  or 
that  interest  from  that  day  was  received  upon  it) ;  but  a  reason- 
able time  to  collect  and  apply  the  money  should  be  allowed  be- 
fore the  commencement  of  interest. 

In  the  case  of  Sheppard  [Executor)  vs.  StarJce  et  ux.,  3 
Munf.,  29,  decided  November  22,  1811,  it  was  held :  When  in- 
terest is  charged  against  an  executor  or  administrator  (in  settling 
his  administration  account)  on  balances  due  at  the  end  of  each 
year,  it  ought  not  to  be  carried  to  the  accounts  of  the  succeed- 
ing year  so  as  to  convert  it  into  principal  and  make  it  bear  in- 
terest, nor  to  be  deducted  from  the  payments  made  in  such 
succeeding  year. 

In  the  case  of  Cavendish  vs.  Eleming,  3  Munf.,  198,  decided 
March  20, 1812,  it  was  held :  An  executor  is  not  chargeable  with 
interest  on  a  legacy  payable  to  an  infant  before  a  guardian  has 
been  appointed,  and  he  has  received  notice  of  such  appoint- 
ment. 

In  the  case  of  McCall  vs.  Peachey's  Administrators,  3  Munf., 
288,  decided  January  25,  1812,  it  was  held:  An  executor  or 
administrator  is  chargeable  with  interest  in  all  cases  when  he 
has  received  it,  and  also  when  paper  money,  or  specie,  remained 
in  his  hands  more  than  a  reasonable  time  (which  in  this  case 
was  said  to  be  six  months)  without  being  applied  to  the  pur- 
poses of  the  estate. 

For  the  reference  to  5  Munf.,  223,  see  the  case  of  Carter's 
Executor  vs.  Cutting  et  ux.,  cited  supra,  this  section. 

In  the  case  of  BurwelVs  Executors  vs.  Anderson  {Administra- 
tor) etc.,  3  Leigh,  348.  Testator,  after  directing  the  sale  of  cer- 
tain property  to  raise  a  fund  to  pay  debts,  and  after  giving  all 
the  residue  of  the  estate  to  his  wife  for  Hfe,  directs  that  at  her 
death  all  his  estate,  real  and  personal,  shall  be  turned  into 
money,  to  be  distributed  as  follows :  First,  he  desires  that  his 
wife,  by  will  or  otherwise,  may  have  the  absolute  disposal  of 
five  hundred  pounds;  then  he  bequeathes  to  his  nephew,  W.  P., 
two  hundred  pounds;  and  after  deducting  these  two  sums,  he 


Citations  to  the  Code  of  Virginia.  409 

l)equeathes  two-thirds  of  the  balance  to  his  niece,  A.  S.,  and  the 
other  one-third  to  his  sister,  A.  C. ;  and  he  directs  that  if  the 
fund  provided  for  debts  prove  inadequate,  the  sum  to  make  up 
the  deficiency  shall  be  deducted  in  equal  proportions  from  the 
sums  bequeathed  to  his  wife,  nephew,  niece,  and  sister.  Held : 
The  wife  took  bj  the  will  the  absolute  property  in  the  five  hun- 
dred pounds  bequeathed  to  her,  and  not  a  mere  power  to  dis- 
pose of  that  sum. 

In  the  case  of  Garrett  {Executor  of  Allen)  vs.  Carr  and  Wife 
■et  als.,  3  Leigh,  407,  decided  February,  1832.  Testator  devises 
that  his  lands  shall  be  sold  and  the  proceeds  invested  in  bank 
stock,  or  in  such  other  property  as  his  executors  shall  think 
most  advantageous  to  his  children ;  the  executors  sell  the  land 
but  do  not  invest  the  proceeds  in  bank  stock,  and  afterwards 
account  for  the  proceeds  in  money.  Held :  They  ought  to  be 
charged  with  interest  on  the  balance  in  their  hands  annually, 
and  their  disbursemets  for  the  maintenance  of  the  children,  and 
all  other  accounts  ought  to  be  defrayed  out  of  the  interest 
accruing  on  the  balances. 

In  the  case  of  Wood  {Executor)  vs.  Garnett,  6  Leigh,  271,  de- 
cided April,  1835,  it  was  held:  The  propriety  of  charging  an 
executor  with  interest  on  balances  in  his  administration  account 
depends  on  the.  particular  circumstances  of  each  case;  and  he 
ought  not  to  be  charged  with  interest  on  small  annual  balances 
when  it  appears  that  he  was  in  no  default  in  not  paying  them 
over  to  legatees,  and  never  applied  the  money  to  his  own  use. 

An  executor,  however  meritorious  his  administration,  is  not 
entitled  to  commission  if  he  fail  to  settle  and  return  his  accounts 
of  administration  according  to  the  statute  of  1824-'25. 

In  the  case  of  Ilandly  vs.  Snodgrass,  9  Leigh,  484,  decided 
July,  1838,  it  was  held :  Although  a  decree  gives  interest  on  a 
sum  which,  according  to  the  mode  of  stating  the  account,  is 
itself  interest,  yet  if  it  be  manifest  that  a  settlement  upon  pro- 
per principles  would  have  made  the  balance  larger,  and  that 
such  balance  would  have  been  principal,  the  decree  will  not  be 
reversed  at  the  instance  of  the  debtor. 

In  the  case  of  Morris  {Administrator)  vs.  Morris  {Adminis- 
trator) et  als.,  4  Grat.,  294,  decided  January,  1848,  it  was  held : 
An  administrator  not  having  settled  his  accounts  is  not  entitled 
to  commissions. 

In  a  suit  by  an  administrator  de  bonis  non  against  the  repre- 
sentative of  the  first  administrator  for  the  settlement  of  the  first 
administrator's  accounts  of  his  administration,  it  is  irregular  to 
decree  payment  to  the  administrator  de  bonis  7wn,  but  the  dis- 
tributees being  party  to  the  suit,  and  not  complaining,  so  that  a 
payment  to  the  administrator  de  bonis  non  would  be  a  valid  dis- 
charge to  the  representative  of  the  first  administrator,  he  will 


410  Citations  to  the  Code  of  Virginia. 

not  be  heard  to  complain  of  the  irregularity  in  the  appellate 
court. 

At  the  close  of  an  administration  account,  the  interest  due 
from  the  administrator  is  not  to  bear  interest. 

In  the  case  of  Eosser  {Executor  of  Wood)  vs.  Depriest  et  als.^ 
5  Grat.,  6,  decided  April,  1848.  An  executor  sells  a  slave  be- 
longing to  his  testator's  estate,  the  sale  not  being  necessary  to 
the  payment  of  debts ;  and  he  re-purchases  the  slave,  and  there- 
after holds  him  as  his  own.  Held :  The  slave  is  the  property 
of  the  estate,  and  the  executor  shall  account  for  his  annual 
hires,  with  interest  thereon,  though  he  was  not  in  fact  hired 
out  by  the  executor,  but  was  kept  in  his  own  employment. 

An  executor  takes  bonds  for  purchases  made  at  a  sale  by  him 
of  testator's  personal  property,  and  does  not  appear  when  these 
bonds  were  paid  off;  he  will  be  charged  with  the  principal  of 
the  bonds  in  the  year  when  they  fell  due,  but  with  interest 
thereon  only  from  the  end  of  that  year. 

In  the  case  of  Strother  et  als,  vs.  Hull  et  als.,  23  Grat.,  652, 
decided  June,  1873.  An  administrator  c.  t.  a.  lives  in  the  dwell- 
ing-house of  his  testator,  and  a  part  of  the  furniture  is  retained 
and  used  by  him,  until  it  is  consumed  by  fire  with  the  house. 
Though  he  had  with  him  the  younger  children  of  the  testator, 
for  whose  board  he  was  paid,  the  furniture  must  be  considered  as- 
having  been  taken  as  his  own,  and  he  must  account  for  its  value. 

In  1851,  H.  dies,  leaving  several  infant  children,  and  a  consid- 
erable estate,  real  and  personal.  He  directs  by  his  will  that  on 
the  marriage  of  his  eldest  daughter,  Ann,  she  shall  have  posses- 
sion of  the  home-place  if  she  will  keep  the  younger  children 
with  her  and  take  good  care  of  them ;  and  this  she  does.  He 
directs  his  executor  to  manage  his  estate  until  the  1st  of  January, 
1861,  when  it  is  all  to  be  equally  divided  among  his  children. 
S.,  the  husband  of  Ann,  becomes  administrator  c.  t.  a.,  takes 
possession  of  the  estate  and  does  not  invest  the  money,  nor  doea 
he  settle  his  administration  account.  Held  :  Ann  and  her  hus- 
band were  entitled  to  the  home-place  free  of  rent,  and  to  be  paid 
a  reasonable  board  for  the  younger  children  whilst  they  lived 
with  them.  The  accounts  of  S.,  as  administrator  c.  t.  a.  up  to 
January  1,  1861,  were  to  be  settled  as  guardian's  accounts,  and 
the  interest  to  be  compounded,  and  his  sureties  are  responsible 
for  the  amount  so  found  against  him  up  to  that  time. 

Though  S.  is  responsible  after  the  1st  of  January,  1861,  for 
compound  interest  upon  the  shares  of  such  of  the  children  aa 
he  continued  to  act  for  as  guardian  de  facto,  his  sureties  are  not 
so  chargeable.  S.  not  having  settled  his  accounts  as  administra- 
trator,  and  showing  no  sufficient  reason  for  his  failure  to  do  so, 
is  not  to  be  allowed  commissions,  except  upon  receipts  after 
January  1,  1861. 


Citations  to  the  Code  of  Virginia.  411 

Prior  to  January  1,  1861,  land  left  to  two  of  the  sons  who 
were  to  account  for  the  same  in  the  division,  was  sold  under  a 
decree  of  the  court  by  S.,  as  commissioner,  and  he  was  decreed 
to  hold  the  proceeds  as  part  of  the  assets  of  his  testator's 
estate.  His  official  bond,  in  fact,  covered  only  the  personal 
assets.  Held :  The  proceeds  of  the  sale  of  the  lands  were  not 
in  his  hands  as  administrator  c.  t,  a.,  and  should  not  be  brought 
into  his  administration  account. 

But  in  no  case  are  the  sureties  responsible  for  them,  as  their 
bond  did  not  cover  the  real  estate. 

S.  is  entitled  to  his  commissions  as  commissioner  on  the  pro- 
ceeds of  the  sale,  viz. :  five  per  cent,  on  the  first  $300,  and  two 
per  cent,  on  the  balance.  In  settling  his  accounts  as  to  the  pro- 
ceeds of  this  land,  the  mode  stated  in  Humphrey's  Administra- 
tor  et  als.  vs.  Carte?'  et  als.,  is  to  be  pursued. 

The  bill  by  the  devisees  not  claiming  damages  for  injury  done 
to  the  fences  and  buildings  on  the  land,  S.  cannot  be  subjected 
to  the  payment  of  such,  either  in  his  account  as  administrator 
or  with  the  devisee. 

One  of  the  children  having  died  in  1862,  the  amount  found 
due  to  her  by  the  administrator  should  bear  interest  from  the 
date  of  her  death. 

The  interest  of  the  deceased  child  is  divided,  and  the  share  of 
each  of  the  survivors  is  credited  to  them  in  their  accounts  with  the 
administrator.  The  final  decree,  after  giving  to  each  the  amount 
reported  by  the  commissioner,  gives  each  a  further  decree  for 
his  and  her  share  of  the  estate  of  the  deceased  child.  This  is 
an  error  which  might  have  been  corrected  by  motion  to  the  cir- 
cuit court,  under  the  Statute  Code,  Chapter  181,  Section  5,  p. 
743,  and  this  court  would  therefore  dismiss  the  appeal,  or  cor- 
rect or  affirm  it,  with  costs  to  the  appellees  if  there  was  no 
error.  • 

In  the  case  of  Sharp's  Executor  vs.  Rockwood  et  als.,  78  Vh., 
24,  decided  November  15, 1883,  it  was  held  :  Interest  is  required 
to  be  paid  by  fiduciaries  on  funds  kept  and  used  by  them ;  and 
if  such  funds  are  kept,  they  are  presumed  to  have  been  used 
and  to  have  been  worth,  or  to  have  made  interest. 

For  the  reference  to  81  Va.,  245,  see  the  case  of  Lovett  vs. 
Thomas's  Administrator  et  als.,  cited  supra,  this  section. 

In  the  case  of  Creigler's  Coinmittee  vs.  Alexand-er's  Executor, 
33  Grat.,  674,  decided  September,  1880,  it  was  held:  As  a  gen- 
eral rule  the  committee  of  a  lunatic  is  only  to  be  charged  simple 
interest  upon  the  balances  found  against  him  on  a  settlement  of 
his  account. 

A  committee  of  a  lunatic  who  qualified  as  such  in  1838,  and 
continued  to  act  until  his  death  in  1875,  and  did  not  settle  his 
accounts,  is  not  entitled  to  commissions  on  his  receipts  from 


412  Citations  to  the  Code  of  Virginia. 

1838  to  1859,  and  the  statute  of  March  3,  1867,  Code  of  1873, 
Chapter  128,  Section  9,  is  not  retrospective  in  its  operation,  and 
therefore  the  court  has  no  authority  to  allow  said  commissions 
under  that  act. 

See  the  references  to  Section  2442. 

In  the  case  of  Lomax  vs.  Pendleton,  3  Call,  538  (2d  edition, 
465),  decided  July  7,  1790,  it  was  held:  A  trustee  retaining 
money  in  his  hands  for  an  unreasonable  length  of  time  shall 
pay  interest. 

In  the  case  of  Beverley's  Administrator  vs.  Miller,  6  Munf., 
99,  decided  February  4,  1818,  it  was  held :  If  a  suit  against  an 
infant  in  the  superior  court  of  chancery  be  fully  defended  by 
his  guardian  appointed  by  the  county  court,  whose  answer  is 
received  on  his  behalf  under  the  sanction  and  authority  of  the 
superior  court,  he  must  be  equally  bound  by  such  defence,  as 
if  such  guardian  had  been,  in  form,  appointed  guardian  ad  litem ; 
but  if  the  suit  abate  as  to  such  guardian  by  his  death  before 
the  decree,  a  guardian  ad  litem  ought  to  be  appointed,  notwith- 
standing all  the  testimony  and  accounts  were  taken  before  his 
death.  Under  the  particular  circumstances  of  this  case,  no  in- 
terest was  permitted  to  be  charged  against  a  trustee  on  the 
moneys  from  time  to  time  in  his  hands,  and  no  commissions 
were  allowed  him  for  his  trouble ;  but  on  closing  his  accounts 
interest  was  allowed  on  a  balance  in  his  favor. 

In  the  case  of  Coltrane  vs.  Worrell,  30  Grat.,  434,  decided 
July,  1878,  it  was  held :  C,  living  in  Virginia,  trustee  of  D.,  a 
married  woman  separated  from  her  husband  and  residing  in 
Missouri,  holds  bonds  on  a  solvent  debtor,  well  secured  on  real 
estate,  which  were  executed  before  the  war;  and  in  1863  re- 
ceives payments  in  part  of  said  bonds  in  Confederate  money 
and  invests  it  for  D.  in  a  Confederate  bond.  The  receipt  of 
Confederate  money  at  that  time  was  a  breach  of  trust,  and  C. 
will  not  be  allowed  a  credit  for  the  amount  of  the  bond. 

C.  holding  bonds  bearing  interest  will  be  charged  with  the  in- 
terest falling  due  during  the  war,  the  debtors  living  in  Virginia, 
and,  therefore,  bound  to  pay  the  interest  to  him. 

By  the  terms  of  the  trust  C.  pays  the  interest  of  the  trust 
fund,  and  as  much  of  the  principal  as  might  be  necessary  for 
the  support  of  D.  Before  the  war  he  paid  her  some  interest, 
and  also  since  the  war.  In  settling  his  account,  whilst  he  will 
not  be  charged  interest  upon  interest,  his  payments  will  not  be 
credited  upon  the  principal  of  the  fund. 

A  trustee  cannot  derive  profit  from  the  trust  fund  without 
rendering  an  equivalent  therefor.  He  is  bound  to  execute  the 
trust  for  the  benefit  of  the  cestui  que  trust,  whether  the  latter 
live  at  home  or  abroad,  or  the  trust  is  to  be  executed  in  peace 
or  in  war.     If  the  trust  fund  be  perfectly  secure,  bearing  in- 


Citations  to  the  Code  of  Virginia.  413 

terest  at  the  beginning  of  the  war,  he  cannot  voluntarily  change 
it  so  as  to  make  it  insecure  and  bear  no  interest. 

In  the  case  of  CoghilL  vs.  Boyd^  79  Va.,  1,  decided  January 
24,  1884,  it  was  held :  Where  this  coui-t  fixes  trustee's  liability 
for  an  ascertained  amount,  but  remands  the  case  without  fixing 
the  rate  of  interest,  it  is  competent  to  the  court  below  to  fix  the 
rate  of  interest  and  restate  the  accounts  at  bar,  or  by  aid  of  a 
master  commissioner.  Where  trustee  invests  trust  funds  at  ten 
per  cent.,  but  c.  q.  t.  repudiates  the  investment,  and  the  same  is 
held  to  have  been  improper,  and  the  trustee  is  held  bound  for 
the  amount  invested,  six  per  cent,  is  the  rate  of  interest  with 
which  he  is  properly  charged. 

Section  2697. 

In  the  case  of  Trevellyan  vs.  Lofft,  11  Va.  Law  Journal,  610, 
decided  April  14, 1887.  Where  administrator  failed  for  eighteen 
months  after  qualification  to  settle  his  accoimts,  and  then  in  a  suit 
brought  against  him  to  enforce  a  settlement  went  before  a  com- 
missioner for  that  purpose,  but  refused  to  settle  because  the  dis- 
tributees demanded  that  he  should  also  settle  as  agent  for  the 
deceased,  and  two  months  afterwards  went  to  England  and  was 
taken  sick  and  remained  for  eighteen  months.  Held :  These 
circumstances  do  not  constitute  a  reasonable  excuse  for  failing 
to  settle,  and  he  is  not  entitled  to  commissions. 

Section  2699. 

In  the  case  of  Wyllie  and  WiJ^e  vs.  Yeneable's  Executor,  4 
Munf.,  369,  decided  February  1, 1815,  it  was  held :  The  account 
of  an  executor  having  been  settled  by  commissioners  appointed 
by  the  court  before  which  the  will  was  proved,  is  not,  of  course, 
to  be  referred  to  a  commissioner  on  a  bill  to  surcharge  and 
falsify ;  but  some  evidence  should  be  exhibited  to  that  effect,  or 
something  improper  in  the  account  should  be  disclosed  in  the 
answer;  otherwise  such  order  of  account  ought  not  to  be  made, 
but  the  bill  should  be  dismissed. 

On  a  bill  to  surcharge  and  falsify  an  executor's  account,  the 
legatees  as  well  as  the  executor  being  defendants,  if  the  plaintiff 
direct  the  cause  to  be  set  for  hearing,  after  the  executor  has  an- 
swered, but  before  the  process  against  the  legatees  has  been 
served,  and  the  cause  be  heard  on  the  merits,  he  cannot  object 
to  the  want  of  proper  parties,  or  that  the  decision  was  prema- 
ture. 

In  the  case  of  Garrett  {Executor  of  Allen)  vs.  Carr  and.  Wife 
et  als.,  3  Leigh,  407,  decided  February,  1832.  Executor's  ac- 
counts are  audited  before  commissioners  of  the  county  court, 
the  legatees  being  present  at  such  settlement  thereof;  these  ac- 
counts are  returned  to  the  court,  approved  and  recorded.     Held : 


414  Citations  to  the  Code  of  Virginia. 

The  presence  of  the  legatees  at  the  settlement  is  no  objection 
to  a  bill  in  chancery  to  surcharge  and  falsify  the  accounts  so 
settled. 

In  the  case  of  Shuman's  Administrators  vs.  Christian,  9  Leigh, 
671,  decided  December,  1838,  it  was  held :  The  settlement  of  an 
administration  account  under  an  ex  />«7'^(3  order  of  the  court 
which  granted  administration,  is  prima  fade  evidence  in  favor 
of  the  administrator  against  creditors  of  decedent. 

The  reference  to  10  Leigh,  434,  is  an  error ;  no  case  in  point. 

In  the  case  of  Newton  vs.  Poole  ;  Newton  and  Wife  vs.  Same, 
12  Leigh,  112,  decided  March,  1841.  The  rule  that  adminis- 
tration accounts,  audited  ex  parte  by  commissioners  appointed 
by  the  proper  court,  returned  to  the  court  and  recorded,  are  to 
be  taken  as  prima  facie  correct,  liable  to  be  surcharged  and 
falsified  upon  proof  adduced  by  any  party  interested,  rests  not 
on  the  ground  that  such  audited  accounts  stand  on  the  same  foot- 
ing as  stated  accounts  between  parties,  but  mainly  on  the  long- 
established  practice  of  the  country,  and  on  the  supposed  integ- 
rity of  the  tribunal  provided  by  law  for  the  adjustment  thereof ; 
therefore,  held : 

1.  That  such  audited  accounts  are  only  to  be  corrected  in  the 
particulars  in  which  they  are  proved  to  be  erroneous,  unless  cor- 
ruption in  the  tribunal  itself  be  established. 

2  Though  great  and  numerous  errors  appear,  or  even  though 
the  executor  or  administrator  appear  to  have  taken  an  unfair  ad- 
vantage, and  though  he  never  returned  to  the  court,  and  did  not 
exhibit  to  the  auditors  any  inventory  and  appraisement  of  the 
estate,  the  audited  accounts^re  yet  to  be  taken  as  prima  facie 
evidence,  and  to  be  corrected  only  so  far  as  they  are  surcharged 
and  falsified  by  proof. 

In  the  case  of  Corbin  et  als.  vs.  MilVs  Executor  et  als.,  19 
Grat.,  438,  decided  March  13,  1869,  it  was  held,  p.  465 :  The 
accounts  of  an  executor  which  have  been  regularly  settled  in 
the  mode  prescribed  by  law,  are  to  be  taken  as  prima  facie  cor- 
rect. 

They  are  liable  to  be  impeached  on  specific  grounds  of  sur- 
charge and  falsification  to  be  alleged  in  the  bill,  but  the  court 
wiU  not  decree  an  account  upon  the  general  allegation  that 
the  settled  accounts  are  erroneous. 

When  an  account  has  been  ordered  upon  a  proper  bill,  if  an 
additional  objection  to  the  settled  accounts  is  discovered  in  the 
progress  of  the  cause,  the  plaintiff  may  raise  the  objection  be- 
fore the  commissioner,  with  a  proper  specification  in  writing, 
and  the  defendant  may  meet  the  objection  by  an  affidavit,  which 
shall  have  the  same  weight  as  an  answer  would  have  had  if  the 
matter  had  been  alledged  in  the  bill. 

Executors  have  regularly  settled  their  accounts  before  a  com- 


Citations  to  the  Code  of  Virginia.  415 

missioner  of  the  court  of  probate,  and  they  have  been  approved 
and  recorded.  A  devisee  and  legatee  of  their  testator  files  a 
bill,  and  without  specifying  any  errors  in  the  settled  accounts, 
calls  upon  them  to  render  an  account  of  all  their  actings  and 
doings.  The  executors  may  object  to  any  overhauling  of  their 
settled  accounts,  except  so  far  as  they  may  be  open  to  objec- 
tions apparent  on  their  face. 

To  such  a  bill  the  executors  answer,  giving  a  full  account  of 
their  administration,  and  there  is  a  decree  for  an  account.  The 
allegations  of  their  answer,  though  affirmative,  must  be  taken  as 
true,  unless  disproved,  so  far  as  they  relate  directly  to  the  ac- 
count which  they  are  thus  required  to  give. 

If  in  such  a  case  the  plaintiif  does  not  amend  his  bill,  and 
specify  errors  in  the  account,  allegations  in  the  answer,  though 
not  explanatory  of  the  accounts,  and  therefore  not,  perhaps, 
within  the  scope  of  the  discovery  sought  by  the  bill,  but  having 
a  relation  to  the  subject-matter  of  the  account,  and  important 
to  a  correct  understanding  of  the  motives  of  the  executors,  and 
of  the  circumstances  under  which  they  acted,  unless  disproved, 
are  to  be  taken  as  true. 

The  references  to  21  Grat.,  189-'90,  are  errors. 

In  the  case  of  Chapman's  Administrators  vs.  Shepherd's  Ad- 
ministrator et  als.,  24  Grat.,  377,  decided  February  11,  1874,  it 
was  held,  pp.  389-90:  Administration  accounts  settled  ex  parte, 
returned  and  recorded  in  the  proper  court,  are  to  be  taken  as 
prima  facie  correct,  liable  only  to  be  surcharged  and  falsified 
by  proper  averment. 

The  inconvenience  of  the  rule  has  been  often  felt,  and  in 
some  few  instances  exceptions  and  modifications  have  been  al- 
lowed when  necessary  to  obtain  the  justice  of  the  case. 

In  the  case  of  Carter  et  als.  vs.  Edmunds,  80  Va.,  58,  decided 
January  15,  1885,  it  was  held :  A  confirmed  report  of  an  ex 
parte  settlement  of  a  fiduciary's  accounts  \%  prima  fade  correct, 
and  can  be  surcharged  or  falsified  only  by  suit  for  the  purpose 
within  proper  time,  Code  1873,  Chapter  128,  Section  29.  This 
is  equally  true  quoad  such  settlements  of  the  accounts  of  the 
committee  of  a  lunatic. 

In  the  case  of  liadford  vs.  Jt'owlkes,  85  Va.,  820,  decided 
February  21,  1889,  it  was  held:  The  ex  parte  settlement  by  a 
master  commissioner  of  the  accounts  of  a  fiduciary  shall  be 
taken  to  be  correct,  except  so  far  as  the  same  may  in  a  suit  in 
proper  time  be  surcharged  and  falsified,  and  the  onus  is  on  the 
plaintifif  to  show  that  it  is  not  correct ;  and  when  such  settle- 
ment is  made  in  a  suit  inter  partes  and  is  duly  returned  and 
confirmed,  it  cannot  be  disturbed  except  for  errors  apparent  on 
its  face,  or  for  after-discovered  facts. 

Bill  to  surcharge  and  falsify  such  settlement  must  particu- 


416  Citations  to  the  Code  of  Virginia. 

larize  errors;  if  answer  of  fiduciary  discloses  nothing  improper, 
and  there  is  no  proof  of  the  specifications,  the  bill  must  be  dis- 
missed. 

If  an  heir,  in  consideration  of  concessions  made  him  by  the 
other  heirs,  and  administratrix  agree  not  to  object  to  payment 
by  her  of  just  claims  presented  by  another  heir,  though  barred 
by  the  statute  of  limitations,  he  will  be  estopped  from  excepting 
to  her  accounts  on  the  ground  that  she  improperly  paid  them. 

Section  2700. 

In  the  case  of  Whitehead's  Adrainistrator  vs.  Whitehead  et  als., 
23  Grat.,  376, decided  March,  1873,  it  was  held:  The  provisions 
of  Section  16,  Chapter  132,  Code  of  1860,  prescribing  what  shall 
be  done  by  a  commissioner  in  settling  the  accounts  of  fiducia- 
ries, apply  to  the  report,  regular  or  special,  mentioned  in  Sec- 
tion 34,  of  the  same  Chapter,  and,  therefore,  under  this  Section 
34  a  county  court  is  not  authorized  to  make  any  order  for  in- 
vesting or  loaning  out  the  money  or  funds  therein  referred  to, 
unless  the  commissioner  has  previously  conformed  to  the  pro- 
visions of  Section  16,  by  posting  the  notice  as  therein  required. 

If  in  such  case  the  order  is  made  by  the  county  court  Avith- 
out  the  report  required  by  the  statute,  the  county  court  has 
jurisdiction  on  the  motion  of  the  parties  whose  money  is  in- 
vested, upon  notice  to  the  other  party,  to  annul  the  order. 

Section  2706. 

In  the  case  of  Moss  vs.  Moss's  Administrator,  4  H.  &  M.,  293, 
decided  October,  1809,  it  was  held :  In  debt  on  a  bond  given 
by  distributees  to  indemnify  an  administrator  for  dividing  an 
estate  among  them,  the  condition  being,  "that  they  should  pay 
him  their  respective  proportions  of  all  debts  which  he  should 
be  compelled  to  pay  that  should  thereafter  come  against  the 
said  estate,"  it  is  sufficient  assignment  of  a  breach  to  say,  "  that 
the  plaintiff,  on  a  day  subsequently  to  the  date  of  the  bond,  had 
paid,  by  the  consent  of  the  defendants,  a  debt  which  was  then 
due  from  the  estate  aforesaid,  and  which,  as  administrator,  he 
was  bound  to  pay,  and  that  the  defendants  had  not  paid  him 
their  respective  parts,  nor  any  portion  thereof,  but  the  same 
had  refused,  though  often  requested." 

In  the  case  of  Nelson's  Administrator  vs.  Cornwell,  11  Grat., 
724,  decided  October,  1854,  it  was  held :  Though  an  executor 
may  have  assented  to  a  specific  legacy,  he  does  not  thereby  dis- 
pense with  a  refunding  bond.  If  the  executor  has  assented  to 
a  specific  legacy  and  waived  a  refunding  bond,  the  legatee  may 
maintain  an  action  at  common  law  against  the  executor  for  its 
recovery,  but  the  intention  to  waive  the  refunding  bond  must  be 
very  clear. 


Citations  to  the  Code  of  Virginia.  417 

In  the  case  of  Morrison  et  als.  vs.  Lovell,  81  Va.,  519,  de- 
cided March  11,  1886,  it  was  held :  Administrator  committed 
devastavit  by  turning  over  intestate's  slaves  and  other  personal 
property  to  the  distributees  without  taking  refunding  bonds,  and 
the  fact  that  the  slaves,  if  retained,  might  have  been  lost  by 
emancipation,  constitutes  no  defence  to  him  or  his  sureties. 

Section  2707. 

In  the  case  of  Kippen  &  Company  vs.  Carres  Executor,  4 
Munf.,  119,  decided  January  5,  1814,  it  was  held:  An  executor 
cannot  defend  himself  against  the  suit  of  a  creditor  by  showing 
that  before  he  had  notice  of  the  plaintiff's  demand  he  paid  over 
the  assets  to  the  legatees  of  the  testator. 

In  the  case  of  Cookus  et  als.  vs.  Peyton's  Executor  et  ah.,  1 
Grat.,  432,  decided  March,  1845,  it  was  held :  An  administrator, 
paying  away  the  assets  of  the  estate  to  distributees,  without  no- 
tice of  debts  or  liabilities  of  his  intestate,  must  account  to  cred- 
itors for  the  amount  so  paid  away  with  interest. 

An  error  appearing  on  the  face  of  a  report  vn\[  be  corrected, 
though  no  exception  has  been  taken  to  it  in  the  court  below. 

For  the  reference  to  81  Va.,  519,  see  Morrison  et  als.  vs.  LoveU^ 
supra.  Section  2706. 


TITLE  XXXVII. 
CHAPTEK  CXXII. 

Section  2713. 

In  the  case  of  Countz  vs.  Geiger,  1  Call,  190  (2d  edition,  165), 
decided  October  30,  1797,  Kfeme  sole  holding  a  right  to  lands 
in  Lord  Fairfield's  boundaries  married,  and  her  husband  forced 
her  to  permit  a  patent  to  issue  in  his  own  name.  Held  :  Her 
heir  at  law  shall  have  a  conveyance. 

A  feme  covert  must  relinquish  her  equitable  as  well  as  legal 
right  separately  and  apart  from  her  husband. 

In  the  case  of  McClenahan  vs.  Hannah,  4  Munf.,  499,  de- 
cided November  21,  1815,  it  was  held :  A  person  having  an 
equitable  title  to  a  tract  of  land  executed  a  power  of  attorney 
to  obtain  a  conveyance,  but  without  authorizing  a  sale  of  right. 
The  attorney  being  induced  to  believe  the  title  bond  defective, 
and  finding  it  inconvenient  to  pay  the  balance  due  of  the  pur- 
chase-money, was  persuaded,  notwithstanding  the  land  had 
greatly  increased  in  value,  to  give  up  the  title  bond  (but  with- 
out assigning  it)  to  the  husband  of  a  woman  in  whom  the  legal 
title  was,  in  consideration  of  the  husband's  giving  up  to  him 
27 


418  Citations  to  the  Code  of  Virginia. 

the  unsatisfied  bond  for  the  purchase-money.  After  the  death 
of  the  wife,  the  husband  sold  the  land  as  his  own,  and  the  pur- 
chaser of  him  filed  a  bill  in  equity  to  enjoin  a  judgment  in  ejec- 
tion obtained  against  him  by  the  heir  of  the  wife,  and  to  get  a 
conveyance  of  the  land.  It  was  decided  that  the  contract  be- 
tween the  attorney  and  the  husband  did  not  stand  on  such  foot- 
ing of  fairness  and  equity  that  it  ought  to  prevail  over  the  legal 
title  of  the  heir  of  the  wife. 


CHAPTER  CXXIII. 

Section  2716. 

In  the  case  of  AUen  vs.  Gihson,  4  Rand.,  468,  decided  Octo- 
ber, 1826,  it  was  held :  In  a  writ  of  unlawful  detainer,  under  the 
act  of  1814,  the  omission  to  state  in  the  complaint  the  estimated 
quantity  of  the  land  in  dispute  is  not  fatal  if  the  complaint  con- 
tains a  reasonably  certain  description.  Under  this  act  a  mort- 
gagee may  obtain  possession  of  the  mortgaged  premises  after 
forfeiture,  by  the  mode  of  proceeding  therein  pointed  out.  This 
act  gives  a  civil  remedy  for  the  immediate  recovery  of  the  pos- 
session in  certain  cases,  even  where  no  force  occurred.  One 
tenant  in  common  may  have  this  remedy  for  the  whole  land 
against  any  party  having  no  right  whatever,  without  joining  his 
co-tenant. 

In  the  case  of  Pauley  vs.  Chapman,  2  Rob.,  235,  decided  Au- 
gust, 1843.  On  a  complaint  by  a  party  under  the  statute  that 
another  had  forcibly  turned  him  out  of  possession  of  a  tenement, 
the  juiy  returned  a  special  verdict  finding  the  facts,  and  upon 
those  facts  the  court  considered  that  the  entry  was  not  with' 
strong  hand  or  with  multitude  of  people,  and  rendered  judg 
ment  that  the  complaint  be  dismissed. 

In  the  case  of  Chapman  vs.  Dunlap^  4  Grat.,  86,  decided  July, 
1847,  it  was  held :  The  defendant,  in  a  proceeding  of  unlawful 
detainer,  dies  pending  an  appeal  by  the  plaintiff  below.  The 
cause  cannot  be  revived. 

In  the  case  of  Ilarman  vs.  Odell,  6  Grat.,  207,  decided  July, 
1849,  it  was  held :  On  a  warrant  of  unlawful  entry  and  detainer 
against  two,  the  warrant  is  executed  on  one,  but  not  on  the  other. 
The  plaintiff  may  proceed  againt  the  one  upon  whom  the  war- 
rant has  been  executed.  No  further  proceedings  can  be  had 
upon  that  wan-ant  against  the  one  upon  whom  it  has  not  been 
executed  before  the  return-day  thereof. 

In  the  case  of  Adams  vs.  Martin,  8  Grat.,  107,  decided  July, 
1851,  it  was  held:  Upon  the  trial  of  a  writ  of  unlawful  de- 
tainer defendant  sets  up  title  in  himself.  Plaintiff  may  prove 
that  the  defendant  entered  on  the  premises  under  a  parol  lease 


CrrATioNS  TO  the  Code  op  Virqinia.  419 

from  himself,  though  the  lease  proved  was  to  continue  more  than 
one  year. 

The  defendant  claiming  title  under  a  deed  made  to  himself 
and  another  as  joint  tenants,  that  other  person  is  not  a  compe- 
tent witness  for  him  to  sustain  his  right  of  possession. 

In  the  case  of  Emerick^  etc.,  vs.  Tavener,  9  Grat.,  220,  decided 
August  17, 1852.  L.  leases  land  to  E.  by  deed  which  is  executed 
by  E,,  and  he  thereby  acknowledges  that  he  is  in  possession  un- 
der the  lease,  and  covenants  to  restore  it  at  the  end  of  the  term. 
E.  holds  over  after  the  term  expires  for  seven  years,  and  whilst 
in  possession  executed  a  deed  b\"  which  he  conveys  a  part  of  the 
leased  land  to  A.  in  fee-simple,  with  a  covenant  of  warranty,  and 
puts  A.  in  possession  of  the  land,  and  disclaims  to  hold  under 
T.  T.  then  instituted  a  proceeding  of  unlawful  detainer  against 
E.  and  A.  Held :  That  E.  is  responsible  to  T.  for  the  whole  of 
the  leased  premises,  though  at  the  time  of  the  institution  of  the 
proceeding  A.  was  in  possession  of  part  of  the  land. 

That  T.'s  recovery  is  not  to  be  confined  to  the  land  in  the 
actual  occupancy  of  E.  and  A.,  but  he  is  entitled  to  recover  all 
the  land  demised,  and  he  may  show  by  parol  testimony  what 
constituted  the  demised  premises. 

That  E.  and  A,  were  properly  joined  in  this  proceeding, 
though  they  did  not  hold  the  land  jointly,  but  each  held  part  of 
the  land  in  severalty,  and  if  only  one  of  them  held  any  part  of 
the  land,  T.  is  entitled  to  a  judgment  against  him,  though  there 
should  be  a  judgment  for  the  other. 

Though  A.  was  in  actual  possession  of  no  part  of  the  land 
claimed  by  the  warrant  at  the  time  it  was  issued,  he  would  be 
entitled  to  a  verdict  in  his  favor.  Yet  E.,  the  lessee,  would  be 
responsible  to  T.,  and  there  should  be  a  judgment  against  him, 
though  at  the  time  of  the  issue  of  the  warrant  he  was  not  in  the 
actual  possession  and  occupancy  of  any  part  of  the  land. 

A.  having  entered  on  the  land,  claiming  in  fee  under  the  con- 
veyance from  E.,  was  not  entitled  to  six  months  notice  to  quit 
from  T.,  though  he  had  not  expressly  disclaimed  to  hold  under 
the  lease  from  T.  to  E.,  and  if  he  held  expressly  as  under- 
tenant of  E.,  he  would  not  be  entitled  to  notice.  When  T.  had 
determined  the  tenancy  of  E.  by  six  months  notice  to  quit,  or 
E.  had  disclaimed  to  hold  as  tenant,  and  thereby  deprived  himself 
of  the  right  to  notice,  it  was  competent  for  T.  to  proceed  at 
once  to  oust  both  E.  and  A. 

The  lease  being  for  a  certain  quantity  of  land,  situated  as 
therein  described,  and  E.  having  executed  it  under  his  hand  and 
seal,  and  thereby  recognized  the  description  and  boundaries 
therein  specified,  and  that  he  then  held  the  same  in  possession, 
and  the  warrant  being  for  the  precise  tenement  described  in 
the  lease,  neither  E.  nor  A.  claiming  under  him  can  be  enter- 


420  Citations  to  the  Code  of  Virginia. 

tained  to  deny  that  the  tenement  had  its  boundaries,  or  that  they 
were  within  them. 

E-  and  A.  will  not  be  permitted  to  introduce  evidence  of  title 
to  the  land  embraced  in  the  lease,  either  in  themselves  or  others, 
nor  will  they  be  permitted  to  introduce  these  title  papers  for 
the  purpose  of  showing  that  they  had  not  possession  of  the  land 
claimed  by  T. 

T.,  if  entitled  to  recover,  may  recover  according  to  the  de- 
scription of  the  land  in  the  warrant  or  in  the  lease,  and  he  must 
then  point  out,  at  his  peril,  to  the  sheriff  the  premises  of  which 
he  is  to  give  T.  possession ;  and  if  he  takes  more  than  he  has 
recovered  in  the  action,  the  court  will  interfere  in  a  summary 
way  and  compel  him  to  make  restitution. 

E.  having  entered  under  the  lease,  and  held  over  after  the 
term  expired,  if  T.  did  any  act  recognizing  him  still  as  his 
tenant,  E.  became  thereby  tenant  from  year  to  year,  upon  the 
conditions  of  the  original  lease.  If  T.  did  not  recognize  the 
continued  tenancy,  E.  was  a  tenant  at  sufferance,  and  not  en- 
titled to  notice  to  quit.  E.  being  still  in  as  tenant  after  the 
term  has  expired,  he  continues  to  hold  as  such  as  long  as  he 
remains  in  possession,  unless  he  disclaims  to  hold  as  such,, 
and  asserts  a  right  adverse  to  T.,  and  such  disclaimer  and  as- 
sertion of  adverse  right  are  brought  home  to  the  knowledge  of 
T.  by  a  full  notice  by  E.  of  his  disclaimer  and  assertion  of  title. 
Quoere :  If  he  must  surrender  the  possession  to  T.  ? 

A.,  by  entering  upon  part  of  the  land  as  purchaser  from  E., 
thereby  became  subject  to  the  same  relations  held  by  E.  towards 
his  lessor,  T.,  and  neither  could  set  up  an  adverse  title  unless 
he  showed  he  had  restored  the  possession  to  T.,  or  had  dis- 
claimed and  held  adversely,  with  full  notice  to  T.,  for  the  period 
of  limitation  prescribed  by  the  statutes. 

E.  and  A.  could  no  more  deny  that  the  possession  under 
which  E.  entered  was  the  possession  of  T.  than  they  could  con- 
trovert T.'s  title. 

In  the  case  of  Harrison  vs.  Middleton^  11  Grat.,  527,  decided 
July,  1854,  it  was  held:  If  a  case  of  unlawful  detainer  has 
been  pending  in  a  county  court  for  more  than  twelve  months 
without  a  final  decision,  it  may  be  removed  on  motion  to  the 
circuit  court. 

An  unlawful  detainer  case  removed  to  the  circuit  court  is 
properly  placed  on  the  docket  at  the  head  of  the  civil  causes 
in  the  court. 

An  agreement  under  seal  by  a  tenant  that  he  will  surrender 
possession  whenever  a  purchaser  from  the  landlord  requires  it, 
constitutes  him  a  tenant  at  will  or  at  sufferance,  and  he  is  not- 
entitled  to  six  months'  notice  to  quit. 


Citations  to  the  Code  of  Virginia.  421 

If  a  tenant  claims  to  hold  adversely  to  his  landlord  he  is  not 
entitled  to  notice. 

A  landlord  sells  land  in  possession  of  his  tenant  by  agreement 
tinder  sale,  and  the  tenant  refuses  to  deliver  possession,  the 
landlord  is  the  proper  party  to  institute  a  proceeding  of  un- 
lawful detainer  to  obtain  possession. 

If  a  deed  of  a  defendant  is  introduced  collaterally  upon  the 
trial  as  evidence,  he  may  show  that  it  is  not  his  deed,  without 
making  oath  to  the  fact ;  and  for  this  purpose  he  may  introduce  a 
subscribing  witness  to  it  to  prove  that  it  was  misread  to  the  de- 
fendant. Proof  that  when  the  deed  was  read  it  was  understood 
in  a  very  material  respect  as  different  from  what  it  is,  may  tend 
to  show  that  it  was  misread,  and,  therefore,  is  incompetent  evi- 
dence. But  if  the  deed  was  correctly  read,  the  misunderstand- 
ing of  it  by  a  party  cannot  affect  its  validity  as  a  deed. 

In  the  case  of  Kinchloe  vs.  Tracewells,  11  Grat.,  587,  decided 
July,  1854.  A  warrant  for  an  unlawful  entry,  etc.,  is  a  civil 
action  which  may  be  removed  on  motion,  without  notice,  from 
the  county  to  the  circuit  court,  if  it  has  remained  undecided  for 
a  year  or  upwards;  and  the  time  is  to  be  estimated  from  the 
organization  of  the  court  summoned  to  try  it. 

To  entitle  the  plaintiff  to  recover  upon  a  warrant  of  unlawful 
detainer,  he  must  prove  that  the  defendant  withheld  the  posses- 
sion at  the  date  of  the  warrant.  But  if  the  warrant  does  not 
state  the  withholding  of  the  possession  by  the  defendant,  that 
may  be  aided  by  the  complaint  which  states  the  fact. 

Upon  a  motion  by  plaintiff  to  instruct  the  jury  to  disregard 
all  the  documentary  evidence  introduced  by  the  defendant,  of 
w^hich  some  part  is  legal  and  some  illegal,  the  court  may  pro- 
perly overrule  the  motion  without  undertaking  to  state  to  the 
jury  which  is  legal  and  which  is  illegal. 

The  boundaries  of  two  co-terminous  owners  of  land  interlock, 
and  the  party  claiming  under  the  elder  patent  enters  upon  his 
land  outside  of  the  interlock,  and  cultivates  and  improves  it, 
holding  continued  possession  thereof.  The  party  claiming 
under  the  junior  patent  enters  on  his  land  outside  of  the  inter- 
lock, and  clears  and  improves  it  and  lives  upon  it,  the  land  in 
the  interlock  being  uncleared,  and  he  exercises  such  continued 
acts  of  ownership  over  the  whole  land  lying  within  the  interlock 
as  constitutes  an  adverse  possession  thereof,  though  but  a 
part  of  it  is  cleared  and  enclosed ;  and  after  thus  living  on  his 
laud  and  acting  for  upwards  of  five  years,  he  dies  in  possession, 
and  his  heirs  continue  to  hold  possession  and  claim  and  exer- 
cise like  acts  of  ownership  over  the  land  within  the  interlock. 
Held:  The  possession  of  the  heirs  is  not  limited  to  their  en- 
closure.    The  entry  of  the  party  holding  under  the  senior  patent 


422  CiTAlIONS  TO  THE  CODE  OF  ViKGINIA. 

is  tolled  by  the  five  yeai-s'  possession  and  descent  cast,  and  he 
cannot  recover  by  a  warrant  of  unlawful  detainer. 

A  deed  conveying  land,  then,  and  continuing  to  be  in  the 
actual  adverse  possession  of  another,  cannot  operate  to  pass 
the  title  to  the  grantee. 

In  1831,  and  until  the  passage  of  the  act  of  March  30,  1837, 
no  possession  short  of  fifteen  years,  unaided  by  a  descent  cast, 
would  bar  the  entry  of  one  having  right  or  title  to  the  land. 

An  entry  upon  land  in  the  possession  of  another,  in  order  to 
operate  an  ouster  and  give  a  possession  to  the  party  entering, 
must  be  with  claim  of  title ;  but  the  claim  of  title  need  not  be 
under  a  deed  or  other  writing,  or,  if  it  is  under  a  deed,  it  is  not 
necessary  that  his  possession  shall  be  restricted  to  what  shall 
prove  to  be  within  the  precise  boundaries  of  his  deed. 

Whatever  may  be  the  effect  in  ejectment,  or  a  writ  of  right  of 
the  party  in  possession  having  taken  that  possession  under  a 
mistake  as  to  the  true  boundary  of  his  land,  in  a  warrant  of  un- 
lawful detainer  the  question  is,  whether  such  entry  had  been 
made  and  possessioij  taken,  and  how  long  before  the  institu- 
tion of  the  suit ;  and  the  mistake,  if  it  existed,  is  wholly  unim- 
portant. 

In  the  case  of  Olinger  vs.  Shepherd,  12  Grat.,  462,  decided 
August  21,  1855,  it  was  held :  In  a  case  of  forcible  entry  and 
detainer  pending  when  the  Code  of  1849  went  into  effect,  the 
subsequent  proceedings  must  conform  to  the  Code.  It  seems 
that  under  the  Code  of  1849  a  separate  complaint  is  not  neces- 
sary in  a  proceeding  for  an  unlawful  detainer,  that  the  only 
complaint  necessary  is  that  embodied  in  the  summons. 

In  a  proceeding  for  an  unlawful  entry  and  detainer,  if  the 
defendant  has  entered  unlawfully,  the  plaintiff  is  entitled  to  re- 
cover, without  any  regard  to  the  question  of  his  right  of  posses- 
sion ;  and  this  though  the  land  from  which  he  is  ousted  is  the 
land  of  the  Commonwealth  or  of  the  party  who  ousted  him. 

The  possession  to  which  the  proceeding  for  unlawful  entry 
will  apply,  is  not  confined  to  actual  occupancy  or  enclosure,  but 
it  is  any  possession  which  is  sufficient  to  sustain  an  action  of 
trespass;  and  thus  actual  possession  of  a  part  of  the  tract  of 
land  under  a  hona  fide  claim  and  color  of  title  to  the  whole  is 
such  a  possession  of  the  whole,  or  so  much  thereof  as  is  not 
in  the  adverse  possession  of  others,  as  will  sustain  this  proceed- 
ing. A  deed,  though  it  may  be  invalid  to  pass  the  title  it  pur- 
ports to  convey,  may  be  admissible  evidence  as  a  link  in  plaintiff's 
chain  of  title  to  show  the  bounds  of  the  lands  claimed  by  him, 
and  the  extent  of  his  possession. 

In  the  case  of  Williamson  {Trustee)  vs.  Paxton  {Trustee),  18 
Grat.,  475,  decided  April,  1868,  it  was  held:  A  husband,  trus- 
tee for  his  wife,  contracts  for  the  purchase  of  land  for  her,  but 


Citations  to  the  Code  of  Yirginia.  423 

the  contract  is  in  his  own  name.  He  is  put  into  possession,  but 
he  fails  to  comply  with  the  terms  of  the  contract.  In  a  pro- 
ceeding by  unlawful  detainer  by  the  vendor  to  recover  posses- 
sion, the  wife  is  not  a  necessary  or  proper  party  in  the  ac- 
tion. 

A  vendor  of  land,  who  has  put  the  purchaser  in  possession, 
whilst  the  contract  remains  executory,  has  the  legal  title,  and  un- 
less the  provisions  of  the  Code,  Chapter  135,  Section  20,  apply . 
to  the  case,  may  recover  possession  by  an  action  at  law,  at  least 
after  making  demand  of  possession,  even  though  the  vendee 
may  be  entitled  in  equity  to  a  specific  execution  of  the  contract. 

P.,  trustee  for  B.,  &feme  covert,  with  power  to  sell  and  re-in- 
vest at  his  discretion,  sells  to  W.,  on  conditions  which  W.  fails  to 
comply  with,  and  thus  forfeits  the  contract.  No  authorized 
dealing  of  B.  with  W.  can  entitle  W.  to  hold  the  land  against 
his  vendor.  P.,  after  forfeiting  his  right  to  the  possession  by 
violating  the  contract  of  sale. 

The  contract  provides  for  the  payment  by  W.  in  cash  of  a  sum 
of  money,  and  that  if  W.  fails  by  a  certain  day  within  the  year  to 
do  a  certain  act,  that  he  shall  hold  for  a  year,  and  the  sum  paid 
shall  be  for  the  year.  W.  having  failed  to  do  the  act,  and  hold- 
ing as  tenant  for  the  year,  and  then  holding  over,  does  not  there- 
by become  tenant  from  year  to  year,  and  so  entitled  to  the  legal 
notice  to  quit.  And  though  during  the  second  year  the  pur- 
chaser paid  rent  for  that  year,  it  would  not  of  itself  constitute 
him  tenant  from  year  to  year,  so  as  to  entitle  him  to  notice 
to  quit. 

It  is  a  mere  presumption  of  law,  in  the  absence  of  evidence  to 
the  contrary,  that  a  tenant  who  holds  over  after  the  expiration 
of  his  term,  by  permission  of  the  lessor,  is  a  tenant  from  year  to 
year;  and  this  presumption  may  be  repelled  by  evidence 
which  may  show  that  the  holding  over,  though  by  permission  of 
the  lessor,  is  not  as  tenant  from  year  to  year,  but  in  some  other 
character,  or  for  some  other  pui'pose. 

One  who  is  put  into  possession  upon  an  agreement  to  pur- 
chase land  cannot  be  ousted  by  ejectment  or  unlawful  detainer 
before  his  lawful  possession  is  determined  by  demand  of  posses- 
sion or  otherwise. 

In  the  case  of  Corbett  vs.  Nutt  {Trustee),  18  Grat.,  624,  de- 
cided April,  1868,  it  was  held :  Plaintiiff  in  unlawful  detainer 
proves  he  deposited  the  original  will  of  his  testatrix  with  the 
clerk  of  the  Circuit  Court  of  Richmond  in  1864.  He  also 
proved  that  the  witness  had  inquired  for  said  paper  of  the  said 
clerk  at  his  office  in  the  city  of  Richmond,  in  whose  custody  the 
said  original  paper  had  been  left;  that  said  clerk,  at  his  request, 
made  search  for  said  paper,  and  reported  it  had  l3een  lost  out  of 
his  possession,  and  destroyed  at  the  time  of  the  fire  in  April, 


424  Citations  to  the  Code  of  Virginia. 

1865.  In  the  absence  of  all  suspicion  of  fair  dealing,  this  tes- 
timony is  sufficient  to  let  in  a  copy  of  the  will,  of  the  acciiracy 
of  which  copy  there  is  no  question. 

Upon  proof  that  the  will  had  been  regularly  admitted  to  pro- 
bate in  the  Circuit  Court  of  the  City  of  Eichmond,  such  proof 
of  the  loss  and  destruction  of  the  record  will  authorize  the 
admission  of  an  official  copy  of  the  record,  certified  by  the 
clerk.  And  this  official  copy  having  been  admitted  to  probate 
in  the  Orphan's  Court  of  the  District  of  Columbia,  an  official 
copy  from  that  office  is  admissable. 

Where  the  copy  of  a  paper  has  been  properly  introduced  in 
evidence,  the  admission  of  another  copy  of  the  same  paper,  if 
improper,  cannot  possibly  do  injury  to  the  other  party,  and  is, 
therefore,  no  cause  for  reversing  the  judgment. 

A  proceeding  of  unlawful  detainer  may  be  maintained  against 
a  party  in  unlawful  possession  of  land,  where  such  unlawful 
possession  has  not  been  continued  for  more  than  three  years, 
though  the  legal  title  to  the  land  is  the  only  question  involved 
in  the  cause. 

In  the  case  of  Dobson  vs.  Culpeper  and  Wife,  23  Grat.,  352, 
decided  March,  1873.  C.  and  wife  sell  her  land  to  D.,  but  do 
not  convey  it  to  him.  D.  fails  to  comply  with  his  contract,  and 
C.  and  wife  convey  the  land  to  G.,  the  son  of  C.'s  wife,  and 
then  C.  and  wife  bring  unlawful  detainer  against  D.  to  recover 
the  land.  Held  :  If  D.  had  complied  with  his  contract  so  that 
he  was  entitled  to  a  conveyance,  he  might  have  set  up  the  de- 
fence under  the  statute  in  this  proceeding.  Though  I),  cannot 
question  the  title  of  C.  and  wife,  as  at  the  time  of  the  sale,  he 
may  show  in  his  defence  that  they  have  since  conveyed  the  land 
to  G.  By  their  conveyance  to  G.,  C.  and  wife  lost  their  right 
to  recover  the  land  from  D.,  and  the  action  should  have  been 
in  the  name  of  G.,  and  D.  could  not  question  the  title  of  G. 

In  the  case  of  Allen  et  als.  vs.  Paul  et  als.,  24  Grat.,  332,  de- 
cided January,  1874.  By  two  deeds  a  lot  of  ground  was  con- 
veyed to  certain  persons  by  name  and  their  successors,  to  be 
held  in  trust  for  the  Methodist  Episcopal  Church  of  Petersburg. 
A  house  of  worship,  called  the  Union  Street  Methodist  Church, 
was  built  upon  this  lot,  in  which  this  church  worshipped  until 
1842,  when  they  built  a  house  of  worship  on  Washington  street 
in  the  same  city,  and  in  1844  they  resolved  that  the  Union 
Street  Church  should  be  appropriated  to  the  use  of  the  colored 
congregation  which  was  constituted  by  persons  who  were  mem- 
bers of  the  Methodist  Episcopal  Church  of  Petersburg.  These 
continued  to  worship  there,  and  to  be  represented  at  the  quarterly 
conference  held  at  the  Washington  Street  Church,  until  1865, 
when  they  connected  themselves  with  the  African  Methodist 
Episcopal  Zion  Church.     After  this  change  was  made,  in  the 


I 


Citations  to  the  Code  of  Virginia.  425 

year  1866,  the  then  trustees  of  the  Methodist  Episcopal  Church 
property,  who  were  the  regularly  constituted  successors  of  the 
original  trustees,  agreed  with  the  persons  who,  according  to  the 
rules  and  discipline  of  Zion  Church,  were  then  the  trustees  and 
official  authorities  of  said  congregation  as  part  of  Zion  Church, 
that  until  the  said  property  should  be  required  for  the  use 
of  the  Methodist  Episcopal  Church,  South,  the  said  first 
trustees  should  permit  said  trustees  and  congregation  to  oc- 
cupy the  same  as  a  place  of  worship  without  rent,  they  pay- 
ing insurance  and  repairs,  and  to  this  the  said  trustees  and 
congregation  agreed  ;  and  they  held  the  said  property  on  these 
terms  until  1871,  without-  claiming  any  other  right  thereto. 
In  1871  the  trustees  of  the  colored  congregation  resigned, 
and  others  were  elected,  and  then  the  judge  of  the  Circuit 
Oourt  of  Petersburg  made  an  order  appointing  the  persons 
elected  trustees  of  said  church,  in  whom  the  legal  title  to  the 
land  owned  by  said  congregation  should  be  vested.  And  these 
trustees  from  that  time  claimed  the  premises  and  the  legal  title 
thereto.  The  trustees  of  the  property  thereupon  demanded  pos- 
session of  it,  which  was  refused,  and  they  brought  this  proceed- 
ing of  unlawful  detainer.  Held :  The  defendants,  or  their  pre- 
decessors, having  been  put  into  possession  of  the  premises  by  the 
plaiutiflfs,  or  their  predecessors,  and  having  acknowledged  the 
title  of  the  latter,  the  possession  of  the  former  is  the  possession 
of  the  latter,  until  the  former  as  such  tenants  by  some  act  dis- 
claim to  hold  of  the  latter  as  their  landlords. 

The  defendants  cannot  set  up  any  right,  or  title,  adverse  to 
the  plaintiffs,  unless  they  proved  that  they  disclaimed  to  hold 
them,  or  honci  fide  abandoned  possession  of  the  premises  with 
notice  thereof  to  the  plaintiffs,  or  their  predecessors  three  years 
before  the  institution  of  the  suit.  Quoare  :  If  the  mere  disclaim- 
ing the  landlord's  title,  and  claiming  to  hold  in  fee  for  three 
years  is  sufficient  to  defeat  the  plaintiffs  recovery  ? 

The  defendants  having  disclaimed  to  hold  as  tenants  of  the 
plaintiffs,  and  claimed  to  hold  the  premises  in  fee,  no  notice  to 
quit  was  necessary  to  entitle  the  plaintiffs  to  proceed  immedi- 
ately to  recover  the  property. 

The  plaintiffs,  as  the  regularly  appointed  successors  of  the 
original  trustees  in  the  deeds  conveying  the  property,  may  main- 
tain the  action  to  recover  the  possession  of  the  church  building 
against  the  defendants,  who  claim  to  be  the  trustees  of  the 
African  Methodist  Episcopal  Zion  Church  in  Petersburg,  and 
to  be  vested  with  the  title  to  the  property  belonging  to  said 
church ;  and  as  such  to  be  in  possession  of  the  property  in  con- 
troversy. 

It  is  immaterial  as  to  the  support  of  the  action  whether  the 
plaintiffs  acquired  any  personal  ownership  in  the  property  by 


426  Citations  to  the  Code  of  Virginia. 

the  deeds,  it  not  being  competent  for  the  defendants,  who  claim 
to  hold  as  successors  of  the  plaintiff's  tenants,  to  deny  the  plain- 
tiff's title. 

Although  the  order  of  the  court  was  legal  and  was  binding  sa 
far  as  it  constituted  the  defendants  trustees,  and  the  regularity 
and  validity  of  this  order,  or  the  appointment  of  the  defendants 
as  trustees,  cannot  be  inquired  into  in  this  suit,  yet  the  said  order 
does  not  vest  in  them  the  legal  title  to  the  property  for  the  time 
being,  or  for  an  instant,  unless  the  congregation  which  they 
represent  are  the  owners  of  it;  and  the  predecessors  of  the 
defendants  having  acknowledged  the  title  of  the  plaintiffs,  and 
held  under  them,  the  defendants  claiming  through  them  as  their 
successors  cannot  deny  the  plaintiff's  title. 

That  the  defendants  and  those  under  whom  they  claim  have 
held  possession  of  the  premises  for  more  than  three  years  will 
not  defeat  the  plaintiff's  action  unless  such  possession  was  ad- 
versary. 

Th^  resolution  of  1844  implies  that  the  title  and  ownership 
of  the  property  is  retained  by  the  Methodist  Episcopal  Church, 
and  the  use  of  it  only  given  to  the  colored  congregation,  which 
the  owners  had  at  any  time  the  right  to  recall. 

In  the  case  of  Poioer  db  Kellog  vs.  Tazewells,  25  Grat.,  786, 
decided  February  4,  1875,  it  was  held:  T.,  having  under  the 
act  of  April  1,  1873,  obtained  an  assignment  of  certain  oyster 
beds  for  the  planting  and  sowing  of  oysters  for  one  year,  and 
having  paid  the  tax  and  had  the  beds  staked  off  as  required  be- 
fore the  1st  of  May,  1874,  has  such  an  exclusive  interest  in  them 
that  he  may  maintain  an  action  of  unlawful  detainer  against  a 
party  who  enters  upon  said  beds  and  holds  them  against  him. 

Though  the  act  of  April  18,  1874,  repealed  the  act  of  April  1, 
1873,  the  repeal  could  not  defeat  the  interest  which  had  been 
vested  in  T.,  and  on  which  he  had  paid  the  tax  before  the  re- 
pealing act  was  passed,  though  the  beds  were  not  staked  off  till 
after  its  passage. 

In  the  case  of  Norfolk  City  vs.  Cooke,  27  Grat.,  430,  decided 
April  13,  1876,  it  was  held :  The  city  of  Norfolk  is  the  owner  of 
the  ground  which  she  has  not  disposed  of,  covered  by  water, 
lying  between  Parker  street  and  the  port-warden's  lines,  both 
as  riparia,n  owner  and  as  having  had  long  possession  thereof; 
and  the  city  may  maintain  an  action  of  unlawful  entry  and  de- 
tainer against  any  intruder  upon  said  water  lots. 

In  the  case  of  Bartlexj  vs.  McKhmey,  28  Grat.,  750,  decided 
July,  1877.  In  an  action  of  unlawful  detainer  the  defendant 
appears;  but  though  the  case  is  continued  for  four  years  he 
does  not  file  any  plea.  The  cause  is  proceeded  in  precisely  as 
if  there  was  a  plea  filed — the  jury  are  SAvoru  to  try  the  issue 
joined,  and  the  defendant  makes  full  defence.     There  having 


Citations  to  the  Code  of  Virginia.  427 

been  a  verdict  and  a  judgment  in  favor  of  the  plaintiff,  the  de- 
fendant cannot  set  up  the  want  of  the  plea  and  issue  thereon  in 
the  appellate  court.  In  this  case  the  jury  by  their  verdict  gave 
to  the  plaintiff  the  land  claimed  in  her  summons,  which  included 
an  half-acre  which  probably  did  not  belong  to  her,  and  it  was 
plainly  laid  down  on  the  plat ;  and  the  judgment  was  according 
to  the  verdict.  The  defendant  moved  the  court  to  set  aside  the 
verdict  and  the  judgment,  and  the  plaintiff  by  her  counsel  in 
court,  released  the  said  half -acre.  The  court  thereupon  over- 
ruled the  defendant's  motion,  set  aside  the  judgment,  but  not  the 
verdict,  and  rendered  a  judgment  for  the  land  claimed,  except 
the  half-acre.  Held:  It  was  competent  for  the  counsel  to  re- 
lease the  half-acre  of  the  land  for  the  plaintiff,  and  it  was  proper 
for  the  court  to  set  aside  the  first  judgment  and  enter  a  judg- 
ment for  the  land  included  in  the  verdict,  except  the  half-acre. 
In  this  case  the  plaintiff  claimed  under  the  will  of  her  husband, 
which  gave  her  in  lieu  of  her  dower  all  his  real  estate  during 
her  life,  except  certain  portions  bequeathed  to  his  children. 
The  defendant  claimed  under  the  son,  to  whom  testator  gave  a 
parcel  of  the  land.  Evidence  for  the  defendant  that  the  plain- 
tiff had  been  in  possession  and  enjoyed  the  benefits  of  one-half 
of  the  cleared  lands  of  her  late  husband,  from  the  time  of  his 
death  to  the  time  of  the  trial,  is  irrevelant  and  inadmissible. 
Instructions  asked  for,  which  are  not  founded  on  the  evidence 
in  the  case,  are  properly  refused. 

The  testimony  of  a  witness  for  the  plaintiff  is  objected  to  by 
the  defendant,  because  the  witness  had  sold  to  and  rented  froni 
the  landlord  of  the  defendant  the  land  in  dispute  by  deed  under 
seal ;  and  he  cannot,  therefore,  disparage  the  title  which  the  wit- 
ness had  so  acknowledged.  Held :  Thoiigh  that  would  be  ground 
for  not  permitting  him  to  deny  the  title  of  his  landlord  in  an 
action  against  him  for  rent  or  possession,  it  is  certainly  not 
ground  for  his  incompetency  to  deny  the  fact  in  a  controversy 
between  other  parties,  and  in  which  he  has  no  interest.  A  wit- 
ness intended  to  state  the  facts  according  to  the  best  of  his 
knowledge  or  understanding  and  belief,  it  will  be  so  presumed 
in  the  absence  of  evidence  to  the  contrary. 

A  deposition  is  taken  to  be  read  in  a  case  in  which  Franklin 
Bartley  is  defendant,  and  that  is  the  name  given  in  the  summons 
and  to  which  he  appeared,  but  the  name  in  which  the  action  is 
carried  on  is  William  F.  Bartley.  The  person  is  obviously  the 
same,  and  Franklin  is  a  part  of  the  defendant's  name.  The 
deposition  cannot  be  objected  to  on  this  ground.  There  having 
been  oral  evidence  in  the  cause  expressly  proving  that  the  land 
in  controversy  is  part  of  the  land  devised  to  the  plaintiff,  and 
the  jury  having  so  found,  though  there  may  be  documentary 
evidence  tending  to  show  it  was  not  embraced  in  the  tract  of 


428  Citations  to  the  Code  of  Vikginia. 

the  plaintiff's  husband,  yet  the  exceptions  of  the  defendant  to 
the  ruling  of  the  court  refusing  a  trial,  containing  the  evidence 
and  not  the  facts  proved,  the  court  certifying  its  inability  to 
certify  the  facts  because  of  conflict  of  evidence,  the  appellate 
court  cannot  reverse  the  judgment,  but  must  take  it  to  be 
correct. 

In  the  case  of  Hope  vs.  Norfolk  &  Western  Railroad  Com- 
pany, 79  Va.,  283,  decided  August  7, 1884.  C,  in  1851,  conveyed 
to  Norfolk  and  Western  Railroad  Company  "  all  right,  title,  in- 
terest and  estate  of,  in,  and  to  so  much  of  her  land  in  W.  county 
as  may  be  laid  out  for  the  construction  of  its  railroad,"  to-wit :  A 
strip  eighty  feet  wide,  and  containing  nine  acres  of  said  land. 
C.  was  only  tenant  for  life,  with  remainder  in  fee  in  H.  In  1881 
C.  died.  No  steps  were  taken  by  said  company  to  acquire  said 
right  of  way,  except  taking  conveyance  from  C.  Within  three 
years  after  C.'s  death,  H.  brought  unlawful  detainer  against  said 
company  for  this  land.  Held:  H.  is  entitled  to  judgment  for 
the  land. 

H.'s  right  of  action  did  not  accrue  till  C.'s  death.  Statute 
prescribes  how  such  companies  may  have  land  condemned  for 
their  purposes,  but  if  they  proceed  by  negotiations  in  pais  with 
the  life  tenant  only,  they  can  acquire  only  such  life-tenant  rights. 

In  the  case  of  Locke  vs.  Frasher''s  Administrators,  79  Va., 
409,  decided  September  25,  1884,  it  was  held :  In  this  action, 
as  well  as  in  ejectment,  under  plea  of  not  guilty,  defendant 
can  avail  himself  of  defence  provided  in  Section  2741,  but  only 
where  there  is  a  writing  stating  the  purchase  and  the  terms 
thereof,  signed  by  the  vendor  or  his  agent. 

The  general  rule  that  tenant  cannot  deny  landlord's  title  is 
not  raised  when  tenant  is  in  actual  possession  at  the  time  he  ac- 
cepts the  lease.  Person  possessing  and  claiming  title  to  land  by 
mistake,  supposes  another  to  have  a  better  title,  and  takes  a 
lease  from  him.  In  action  by  lessor  to  recover  possession,  ten- 
ant may  set  up  such  mistake  and  show  he  had  good  title  to 
the  land,  provided  such  mistake  was  induced  by  the  lessor 
through  misrepresentations  amounting  to  fraud. 

One  in  possession  under  agreement  to  purchase  cannot  be 
ousted  before  his  lawful  possession  is  determined  by  demand  or 
otherwise.  Yet  such  possession  may  be  determined  by  the  ac- 
ceptance of  a  lease. 

_  In  the  case  of  Frazier  vs.  Military  Institute,  81  Va.,  59,  de- 
cided October  8,  1885.  In  unlawful  detainer  by  corporation 
against  its  ex-treasurer  for  possession  of  house  and  lot  allowed 
him  as  residence  whilst  in  office,  as  part  of  emoluments,  the  re- 
cords of  the  corporation  are  admissible  as  evidence  to  show  the 
arrangements  made  between  the  parties. 

In  such  action,  though  the  defendant  does  not  put  in  the  pre- 


Citations  to  the  Code  of  Virginia.  42& 

scribed  plea  of  "not  guilty,"  yet  a  jury  is  impaneled  to  try 
whether  he  unlawfully  withholds  the  premises  in  controversy. 

Virginia  Military  Institute  Board  of  Visitors,  on  the  30th  of 
July,  1884,  ordered  that  the  treasurer's  salary  be  $1,000  per  an- 
num, and  $100  for  fuel  and  lights,  and  that  he  have  the  use  of 
the  hospital  building,  and  appointed  F.  such  treasurer  for  the 
term  of  one  year  from  that  day.  The  new  board  on  the  16th  of 
December,  1884,  vacated  the  office ;  but  F.  withheld  the  build- 
ing, claiming  that  the  old  board  had  rented  it  to  him  for  one 
year  at  $180,  deducted  in  advance  from  his  salary  of  $1,280. 
On  unlawful  detainer  for  its  possession.  Held:  F.'s  right  to 
possess  the  building,  being  part  of  the  emoluments  of  the  office, 
ceased  at  his  removal. 

In  the  case  of  Farley  et  als.  vs.  Tillar,  81  Va.,  275,  decided 
January  7,  1886,  it  was  held:  At  trial  of  unlawful  detainer 
against  a  married  woman,  under  the  act,  her  husband  being 
joined,  it  is  not  error  for  the  court  to  instruct  the  jury  that  no 
verdict  or  judgment  can  be  rendered  against  him  in  the  action ;. 
nor  that,  if  they  believe  from  the  evidence  that  she  as  such  sole 
trader  had  rented  and  taken  possession  of  the  property,  and 
unlawfully  withholds  it  from  the  plaintiff,  they  shall  find  for  the 
plaintiff,  but  that  the  burden  is  on  the  plaintiff  to  prove  these 
facts.  Nor  is  it  error  to  reject  an  instruction  that  under  said 
act  every  contract  of  married  women  is  invalid,  unless  joined  in 
by  her  husband ;  nor  instruction  as  to  husband's  being  in  pos- 
session of  the  property  before  suit,  and  holding  on  up  to  trial, 
lawfully  or  unlawfully,  and  as  to  the  defendant's  right  to  a  verdict 
because  husband  was  not  allowed  to  testify  and  prove  his  own 
possession ;  nor  instructions  not  relating  to  any  evidence  in  the 
case. 

In  the  case  of  Pannill  vs.  Coles^  81  Va.,  380,  decided  January 
21,  1886,  it  was  held:  State  Constitution  Article  VI.,  Section  2, 
gives  this  court  appellate  jurisdiction  in  controversies  concern- 
ing the  title  or  boundaries  of  land,  whatever  the  amount  and 
whatever  the  element  of  title  involved  in  the  controversy;  and, 
consequently,  such  jurisdiction  extends  to  cases  of  unlawful 
entry  and  detainer. 

In  the  case  oi  Davis  et  als.  {Trustee)  vs.  Mayo  et  als.,  82  Va., 
97,  decided  June  17,  1886,  it  was  held :  In  ejectment,  title  or 
right  of  possession  is  always  involved.  The  design  of  unlawful 
detainer  is  to  protect  the  actual  possession,  whether  rightful  or 
wrongful,  and  to  afford  summary  redress  and  restitution.  Forci- 
ble entry  of  owner  is  unlawful.  Entry  of  stranger  is  unlawful, 
whether  forcible  or  not.  Judgment  only  restores  the  status  quo, 
but  settles  nothing  as  to  the  title  or  right  of  possession. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  554. 

In  the  case  of  Fore  vs.  Campbell,  82  Va.,  808,  decided  Jan- 


430  Citations  to  the  Code  of  Virginia. 

uary  27,  1887,  it  was  held:  If  one  enter  upon  land  of  another 
unlawfully,  the  latter  is  entitled  to  recover  the  possession  of  the 
land  by  this  action  without  regard  to  right  of  possession.  Pos- 
session under  claim  of  title  is  all  that  is  necessary  to  maintain  it. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  366. 

In  the  case  of  Pettit  vs.  Cowherd,  83  Va.,  20,  decided  March, 
1887,  it  was  held :  Where  in  unlawful  detainer  plaintiff  fails  to 
prove  that  defendant  has  not  unlawfully  held  possession  of  the 
land  for  three  years  or  more  before  the  commencement  of  the 
action,  he  cannot  recover. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  431. 

Section  2718. 

In  the  case  of  Bosenherger  vs.  Bowen,  84  Va.,  675,  decided 
March  29,  1888.  It  was  shown  in  evidence  at  the  trial  that  de- 
fendant was  in  possession  of  a  tract  of  land,  under  written  con- 
tract with  plaintiff,  to  convey  by  deed  with  general  warranty ; 
that  there  were  at  the  time  vendors  and  judgment  liens  on  the 
land,  that  nearly  the  whole  contract  price  and  part  of  the  ven- 
dor's lien  had  been  paid  to  avoid  a  sale  therefore;  tliat  defen- 
dant being  able  and  willing  to  pay  the  balance,  demanded  a 
deed,  which  plaintiff  failed  to  give,  himself  not  having  the  title, 
but  that  the  plaintiff  afterwards  demanded  possession.  Held : 
The  plaintiff  cannot  maintain  his  action. 

Section  2719. 

In  the  case  of  Johnson  vs.  Hargrove,  81  Va.,  118  and  123,  de- 
cided. December  3,  1885.  By  an  ancient  rule  of  the  common 
law,  before  lessor  can  exercise  a  stipulated  right  of  re-entry  for 
breach  of  covenant  to  pay  rent,  he  must  make  an  actual  demand 
upon  the  tenant  for  the  payment  thereof,  unless  by  special  agree- 
ment the  requirements  of  demand  have  been  dispensed  with. 
The  rules  as  respects  the  necessity  for'demand  remain  unaltered 
here  by  statute 

H.,  tenant  of  J.,  of  premises  in  the  city  of  R.,  for  five  years 
for  rent,  payable  first  day  of  each  month,  under  a  lease  with 
clause  of  re-entry  for  ten  days  default  in  paying  any  instalment 
of  rent,  was,  April  12,  1883,  in  default  for  rent  for  preceding 
month,  and  J.  notified  H.  that  unless  he  quit  the  premises  in 
five  days  he  would  proceed  against  him  for  the  unlawful  de- 
tainer thereof.  Next  day  H.  tendered  the  rent  to  G.,  who  had 
been  acting  as  J.'s  agent  in  the  matter,  but  G.  refused  to  receive 
it.  Seven  days  after  the  notice  J.  brought  unlawful  detainer  for 
the  premises.     Held : 

1.  As  J.  had  made  no  demand  for  the  rent  in  arrear,  his  ac- 
tion was  not  maintainable,  either  at  common  law  or  under  the 
statute. 


Citations  to  the  Code  op  Virginia.  431 

2.  Service  of  notice  on  H.  to  quit  did  not  revoke  G.'s  agency, 
and  the  tender  of  the  rent  in  the  arrcar  within  the  statutory 
period  of  five  days  would,  even  had  there  been  a  demand  for 
the  rent,  have  defeated  the  action  under  the  statute. 

Section  2720. 
See  the  references  given  to  Section  3455. 

CHAPTEK  CXXIY. 
Section  2722. 

In  the  case  of  IlopJdns  <&  Watkins  vs.  Ward  et  als.,  6  Munf., 
38,  decided  December  11,  1817,  it  was  held :  The  Common- 
wealth, by  patent  granted  "a  tract  of  land  containing  seventy 
thousand  two  hundred  and  two  acres"  (within  specified  metes 
and  bounds,)  by  a  survey  containing  a  surplus  of  forty-two 
thousand  acres,  held  by  titles  having  legal  preference  to  the 
warrants  and  rights  upon  which  the  grant  was  founded.  A 
reservation  was  therefore  made  in  favor  of  those  titles  in  gene- 
ral terms.  It  was  decided  that  under  the  terms  of  this  patent 
the  grantee  was  entitled  to  recover  in  ejectment  all  the  land 
within  the  metes  and  bounds  thereof,  except  such  as  the  de- 
fendants might  show  themselves  entitled  to  under  the  said  re- 
servation. » 

A  deed  of  bargain  and  sale  and  release  of  land  from  a  person 
not  in  possession  to  another  in 'the  same  predicament  (the  land 
being  at  the  time  held  by  a  third  person  with  adverse  title), 
passes  nothing,  and  therefore  does  not  divest  the  bargainor  of 
his  right  to  recover  in  ejectment.  A  cestui  que  trust,  after  the 
purposes  of  the  deed  have  been  satisfied,  may  maintain  eject- 
ment upon  a  demise  in  his  own  name,  although  the  legal  estate 
is  still  in  the  trustee.  A  plaintiff  in  ejectment  may  recover  under 
one  or  the  other  of  two  demises  of  the  same  land  from  different 
persons. 

In  the  case  of  Ferguson  vs.  Franklins,  6  Munf.,  305,  decided 
February  20,  1819,  it  was  held :  A  sale  and  conveyance  of  land 
by  a  trustee  cannot  be  set  aside  on  the.  ground  that  he  was  an 
alien  when  the  deed  .was  made  to  him,  and  when  he  conveyed 
the  land  to  the  purchaser. 

In  the  case  of  Moore  <&  McClung  vs.  Fitzwater,  2  Band.,  442, 
decided  May  20,  1824,  it  was  held:  Where  two  parties  claim 
title  to  lauds,  and  they  compromise  the  dispute  by  one  party 
paying  a  sura  of  money,  and  the  other  conveying  the  land  with 

— ,      warranty,  such  agreement  will  be  binding,  if  there  be  no  fraud 

K    or  imposition  in  obtaining  the  judgment. 

^^H      In  the  case  of  Davis  et  als.   [Trustee)  vs.  Mayo  et  als.,  82 

^p  Ya.,  97,  decided  June  17,  1886,  it  was  held :  In  ejectment  title 

I 


432  Citations  to  the  Code  of  Virginia. 

or  right  of  possession  is  always  involved.  The  design  of  un- 
lawful detainer  is  to  protect  the  actual  possession,  whether  right- 
ful or  wrongful,  and  to  afford  summary  redress  and  restitution. 
Forcible  entry  of  owner  is  unlawful.  Entry  of  stranger  is  un- 
lawful, whether  forcible  or  not.  Judgment  only  restores  the 
stahis  quo,  but  settles  nothing  as  to  the  title  or  right  of  posses- 
sion. 

In  the  case  of  Dooley  vs.  Baynes^  86  Va.,  644,  decided  March 
13,  1890,  it  was  held:  Declarations  accompanying  the  act  of 
possession,  in  disparagement  of  claimant's  title  or  otherwise 
qualifying  his  possession,  are  admissible  in  evidence,  not  only 
against  declarant,  but  those  claiming  under  him. 

Section  2723. 

In  the  case  of  Boiling  vs.  The  Mayoi\  etc.,  of  Petersburg,  3 
Rand.,  563,  decided  December,  1825,  it  was  held :  A  disseisor 
may  maintain  a  writ  of  right  against  a  stranger  who  cannot  pro- 
tect himself  under  the  better  right  of  the  disseisee. 

In  the  case  of  Taylor's  Devisees  vs.  Rightviire,  8  Leigh,  468, 
decided  August,  1836,  it  was  held :  In  Virginia  a  writ  of  right 
may  be  maintained  by  a  devisee  upon  the  possession  or  seisin 
of  his  testator. 

If  the  demandant  in  a  writ  of  right  die  pending  the  suit,  his 
devisees  may,  in  Virginia,  have  the  cause  revived  in  their 
names. 

In  the  case  of  Tapscott  vs.  Cohbs  et  als.,  11  Grat.,  172,  decided 
April,  1854,  it  was  held:  A  party  in  peaceable  possession  of 
•  land  is  entered  upon  and  ousted  by  one  not  having  title  to,  or 
authority  to  enter  upon  the  land.  The  party  ousted  may  recover 
the  premises  in  ejectment  upon  his  possession  merely,  and  his 
right  to  recover  cannot  be  resisted  by  showing  that  there  is  or 
may  be  an  outstanding  title  in  another,  but  only  by  showing 
that  the  defendant  himself  either  has  title  or  authority  to  enter 
under  the  title. 

Where  an  ancestor  dies  in  possession  of  land,  the  presumption 
of  law  is,  that  the  heir  is  in  possession  after  the  death  of  the  an- 
cestor, and  in  the  absence  of  all  evidence  on  the  point,  the  heir 
may  maintain  ejectment  upon  the  strength  of  his  possession 
against  one  who  has  entered  upon  the  land  without  title  or 
authority  to  enter  under  the  title  outstanding  in  another. 

In  the  case  of  Mitchell  vs.  Baratta,  17  Grat.,  445,  decided 
May  14,  1867,  it  was  held:  If  the  plaintiff  in  ejectment  would 
have  been  entitled  at  the  time  the  Code  of  1849  went  into  effect, 
and  at  the  time  of  the  institution  of  his  suit,  to  recover  in  a 
writ  of  right,  he  is  entitled  to  recover  in  the  present  action  in 
ejectment. 

In  the  case  of  Alv&y  vs.  Cahoon  et  als.,  86  Va.,  173,  decided 


Citations  to  the  Code  of  Virginia.  433 

June  13,  1889,  it  was  held :  Under  this  section  an  amendment 
of  a  judgment  for  plaintiffs  in  ejectment,  "for  their  term  yet  to 
come  in  the  lands,"  etc.,  so  as  to  conform  with  the  plaintiffs' 
claim  and  the  requirements  of  the  Code  of  1849,  whereby  eject- 
ment was  adopted  to  try  titles  to,  as  well  as  to  get  possession  of 
land,  was  not  erroneous. 

Section  2725. 

In  the  case  of  Butts  vs.  Bhint  et  als.,  1  Rand.,  255,  decided 
December,  1822,  it  was  held :  In  ejectment,  where  the  lessor  is 
a  fictitious  person  instead  of  the  lessee,  evidence  on  the  part  of 
the  plaintiff  not  going  to  show  a  title  in  the  lessor  ought  to  be 
excluded. 

Although  the  act  of  jeofails  cures  any  objection  of  form  or 
"substance  to  the  declaration  in  ejectment  after  issue  joined,  yet 
it  does  not  dispense  with  the  rule  that  the  evidence  must  be 
relevant  to  the  issue. 

Depositions  ought  not  to  be  admitted  in  a  suit  at  law,  unless 
it  appears  by  the  record  in  what  suit  and  by  what  authority 
they  were  taken,  and  that  the  witness  could  not  attend  at  the 
trial. 

In  the  case  of  Boiling  vs.  Leel^  76  Va.,  487  and  495,  decided 
July  13, 1882.  Several  plaintiffs,  after  suit  brought,  aliened  their 
interest  in  the  land.  Held:  Such  alienation  cannot  prevent 
their  recovery  for  benefit  of  the  alienee.  Eight  to  recover  at 
commencement  of  suit  is  all  that  is  required  by  the  Code. 

Section  2726. 

In  the  case  of  Camden  et  als.  vs.  Haskill,  3  Rand.,  462,  de- 
cided October,  1825,  it  was  held :  Several  tenants  claiming  sev- 
erally parts  of  the  land  sued  for  may  be  sued  in  one  action  of 
ejectment. 

In  the  case  of  Stuarfs  Heirs,  etc.  vs.  Coalter,  4  Rand.,  74, 
decided  February,  1826,  it  was  held :  An  ejectment  may  be 
brought  against  several  persons  in  possession  of  any  part  of  the 
tract  of  land  claimed  by  the  lessor  of  the  plaintiff. 

In  the  case  of  Mitchell  vs.  Baratta,  17  Grat.,  445,  decided 
May  14,  1867,  it  was  held :  If  a  tenant  is  sued  in  ejectment  for 
the  land  so  held  by  him,  his  landlord  is  entitled,  under  the  act, 
to  be  made  a  party  defendant  to  defend  the  action. 

In  the  case  of  Carrol  vs.  Brow7i^  28  Grat.,  791,  decided  August 
2, 1877,  it  was  held,  p.  794 :  A  court  of  equity  has  jurisdiction  of  a 
suit  brought  by  the  owner  in  possession  to  set  aside  a  deed 
which  has  been  put  upon  record,  whereby  the  complainant's 
land  has  been  wrongfully  conveyed  to  a  purchaser  at  a  tax 
sale. 

In  the  case  of  Hanks,  etc.  vs.  Price,  etc.,  32  Grat.,  107,  de- 

28 


434  Citations  to  the  Code  of  Virginia. 

cided  July,  1879,  it  was  held :  In  an  action  of  ejectment  brought 
against  the  person  in  possession,  the  landlord  of  such  person  may 
come  in  and  be  allowed  to  defend  the  action  under  Section  5,  Chap- 
ter 131,  Code  of  1873,  whether  the  actual  relation  of  lessor  and 
lessee  exists  between  them  or  not,  and  this  will  be  permitted  even 
where  the  plaintiff  and  defendant  in  possession  having  submitted 
the  matters  between  them  to  arbitration,  an  award  made  is  in  favor 
of  the  plaintiff,  and  a  rule  awarded  against  the  defendant  in 
possession  to  show  cause  why  the  award  should  not  be  entered 
as  the  judgment  of  the  court  against  him.  In  general  the  law 
will  imply  a  tenancy  whenever  there  is  an  ownership  of  the  land 
on  one  hand,  and  an  occupation'  by  possession  on  the  other. 

The  reference  to  76  Va ,  488,  is  an  error. 

In  the  case  oi  Stearns  vs.  Ilarnian,  80  Va.,  48,  decided  Jan- 
uary 8, 1885,  it  was  held :  On  the  principle  of  quia  timet,  a  court 
of  equity  will  execute  a  suit  by  the  owner  in  possession  of  land 
to  remove  a  cloud  from  his  title,  by  annulling  a  deed  that,  by 
mistake  or  fraud,  conveys  the  land  to  another,  who  makes  ad- 
verse claim  thereto,  but  brings  no  suit.  But  under  Code  1873, 
Chapter  131,  Sections  4  and  5,  the  proper  remedy  is  by  an 
ejectment  where  the  owner  holds  the  legal  title,  but  has  not 
actual  possession,  and  another  asserts  an  adverse  claim  to  the 
land,  but  has  not  actual  possession  of  it.  In  such  case  equity 
has  no  jurisdiction. 

In  the  case  of  Reynolds  vs.  Cook,  83  Va.,  817,  decided  Novem- 
ber, 1887,  it  was  held :  A  right  to  quarry  and  remove  limestone 
from  a  tract  of  land  is  an  interest  in,  or  a  right  arising  out  of 
land,  and  as  such  constitutes  a  foundation  for  an  action  of  eject- 
ment. 

Section  2727. 

In  the  case  of  Kinney  vs.  Beverly,  1  H.  &  M.,  531,  decided 
November  5,  1807,  it  was  held :  An  ejectment  does  not  abate  by 
the  death  of  the  lessor  of  the  plaintiff. 

In  the  case  of  Mooberry  et  als.  vs.  Marye,  2  Munf.,  453,  de- 
cided April  13,  1811,  it  was  held:  Where  the  lessor  of  the 
plaintiff  in  ejectment  dies  pending  the  suit,  judgment  is  to  be 
rendered  as  if  he  were  still  living,  and  possession  is  to  be  given 
under  control  of  the  court. 

A  case  agreed  in  ejectment,  finding  the  lease,  entry  and  ouster 
in  the  declaration  mentioned,  sufficiently  admits  that  all  the  de- 
fendants, who  agreed  to  the  case,  are  in  possession  of  the  land  in 
controversy,  unless  there  be  an  express  finding  to  the  contrary. 

In  the  case  of  Medley  vs.  Medley,  3  Munf.,  191,  decided  Octo- 
ber 9,  1811,  it  was  held:  An  appeal  from  a  judgment  in  eject- 
ment does  not  abate  by  the  death  of  the  lessor  of  the  plaintiff, 
notwithstanding  such  lessor  claimed  the  land  for  life  only. 


Citations  to  the  Code  of  Virginia.  435 

Section  2728. 

In  the  case  of  Duvall  et  als.  vs.  Bibh,  3  Call,  362,  (2d  edition), 
313,  decided  May  7,  1803,  it  was  held:  If  in  ejectment  the  de- 
mise and  ouster  be  laid  precedent  to  the  plaintiff's  title,  it  is 
cured  by  the  act  ol  jeofails. 

In  the  case  of  Twyman  ( Trustee)  vs.  Hawley,  24  Grat.,  512,  de- 
cided March,  1874,  it  was  held :  T.  sells  land  to  H.  and  puts  him 
into  possession  of  it,  but  does  not  convey  it  to  him.  H.  having 
failed  to  pay  any  part  of  the  purchase-money,  T,  brings  eject- 
ment against  him  to  recover  the  land  without  giving  T.  notice  to 
surrender  it.  The  notice  was  essential  to  sustain  the  action,  and 
T.  must  therefore  fail  in  his  action. 

In  the  case  of  Benn  vs.  Hatcher  et  als.,  81  Va.,  25,  decided 
April  30,  1885,  it  was  held,  p.  31 :  Declaration  describes  the 
land  in  controversy  as  lying  north  of  a  road,  and  the  verdict  as 
south  of  that  road.  In  other  particulars  the  description  is  the 
same.  Such  variance  is  immaterial,  and  the  description  in  the 
declaration  must  be  presumed  to  be  mistaken. 

In  the  case  of  Messick  vs.  Thomas,  84  Va.,  891,  decided  May 
10,  1888.  Where  the  declaration  avers  that  plaintiff  was  pos- 
sessed of  an  estate  in  fee,  and  defendant  entered  upon  this 
estate  and  unlawfully  withholds  possession  thereof  from  the 
plaintiff,  and  defendant  pleads  '"not  guilty,"  verdict  is,  "We,  the 
jury,  find  for  the  plaintiff  that  he  is  entitled  in  fee  to  the  whole 
of  the  premises  in  his  declaration  described,  and  that  all  the 
defendants  were  in  possession  of  a  part  thereof,  or  claimed  title 
to  such  part  at  the  commencement  of  this  suit."  Held :  The  ver- 
dict responds  to  the  issue  when  the  premises  are  described  in  the 
declaration  with  "  convenient  certainty,"  and  verdict  is  that 
plaintiff  is  entitled  in  fee  to  "the  whole  of  the  premises  in  the  de- 
claration described,"  such  verdict  is  not  defective  for  uncertainty. 

Where  defendant  at  trial  proves  that  he  is  in  possession  of 
and  claiming  title  to  only  a  part,  verdict  and  judgment  for  plain- 
tiff for  the  whole  land  described  in  the  declaration  is  not  erron- 
eous, or  at  least  not  one  whereby  defendant  is  injured. 

Section  2729. 

In  the  case  of  Beverley  vs.  Fogg,  1  Call,  485  (2d  edition,  421), 
decided  May  7,  1799,  it  was  held :  Where  the  demandant  in  a 
writ  of  right  omits  to  set  forth  the  boundaries  in  his  declaration, 
it  will  be  error,  after  verdict. 

In  the  case  of  Tuherville  vs.  Long,  3  H.  &  M.,  309,  decided 
March,  1809,  it  was  held :  If  the  original  writ  be  lost,  so  that  it 
cannot  be  made  part  of  the  record,  the  court  will  intend  after 
verdict  that  it  was  a  good  writ,  though  some  of  the  subsequent 
process  be  erroneous.  Appearance  and  pleading  to  the  action 
cures  all  errors  in  the  process. 


436  Citations  to  the  Code  of  Virginia. 

It  was  not  necessary  in  actions  in  the  -district  courts  to  aver 
in  the  declaration  that  the  cause  of  action  arose  within  the 
jurisdiction  of  the  court;  but  it  seems  that  such  averment  is 
necessary  in  actions  in  corporation  courts  only. 

A  count  on  a  writ  of  right,  referring  to  boundaries,  as  by  a 
survey  made  in  the  cause,  sufficiently  describes  the  boundaries 
of  the  land  in  dispute. 

If  the  record  of  proceedings  on  a  WTit  of  right  state  that  the 
demandant  "replied"  generally,  the  court  will  intend,  after  ver- 
dict, that  a  general  replication  was  filed  in  writing. 

The  statute  of  jeofails  extends  to  writs  of  right ;  therefore  if 
the  verdict  and  judgment  be  substantially  right,  though  not  in 
the  words  of  the  law,  they  ought  not  to  be  disturbed. 

In  the  case  of  Urquhart  et  als.  vs.  Clarke  et  als.,  2  Kand.,  549, 
here  referred  to,  this  point  is  so  indefinitely  treated  as  to  be" 
utterly  useless  as  an  authority  in  point. 

In  the  case  of  Koiner  vs.  Rankhis  Heirs,  11  Grat.,  420,  de- 
cided July,  1854,  it  was  held :  The  quantities  and  boundaries  of 
the  land  described  in  the  count  and  in  the  verdict  vary  from 
each  other  ;  but  the  verdict  finds  that  the  land  therein  described 
is  the  tenement  mentioned  in  the  count.  It  is  to  be  presumed 
that  the  description  given  in  the  count  is  a  mistaken  descrip- 
tion, and  that  the  land  recovered  is  the  land  demanded. 

In  the  case  of  Hitchcock  vs.  Hawson,  14  Grat.,  526,  decided 
August  23,  1858,  it  was  held:  A  declaration  in  ejectment,  which 
describes  the  land  as  a  part  of  a  larger  tract  owned  by  plaintiff 
near  certain  creeks  which  have  no  public  notoriety,  is  defective 
and  may  be  demurred  to.  In  such  a  case  a  verdict  which  finds 
for  the  plaintiff  the  land  in  the  declaration  mentioned  is  too 
vague  to  enable  the  officer  to  deliver  possession,  and  there  must 
be  a  venire  de  novo. 

In  the  case  of  Stinchcomh  vs.  Marsh,  15  Grat.,  202,  decided 
July,  1868,  it  was  held:  In  an  action  of  ejectment,  the  record  of 
another  action  of  ejectment  between  other  parties  is  not  com- 
petent evidence  upoD  a  question  of  boundaries  or  location  of 
the  land  in  controversy. 

In  the  case  of  Elliot  vs.  Horton,  28  Grat.,  766,  decided  July 

17,  1877,  it  was  held :  In  an  action  of  ejectment  parol  evidence 
is  admissible  to  prove  that  the  calls  for  courses  and  distances  in 
a  deed  are  mistaken,  and  do  not  designate  the  true  boundary  of 
the  land  intended  to  be  conveyed. 

For  the  reference  to  81  Va.,  25  and  30,  see  the  case  of  Benn 
vs.  Hatcher  et  als.,  cited  sfiipra.  Section  2728. 

In  the  case  of  Hunter  vs.  Hume,  88  Va.,  24,  decided  June 

18,  1891,  it  was  held :  Quantity  is  regarded  as  the  least  certain 
mode  of  describing  land,  and  hence  must  yield  to  description  by 
boundaries  and  distances. 


Citations  to  the  Code  of  Virginia.  437 

Section  2730. 

In  the  case  of  Roach  vs.  Blakey  89  Va.,  767,  decided  March 
23,  1893.  Where  a  declaration  in  ejectment  alledges  that  on  a 
certain  day  before  bringing  the  action  plaintiffs  were  possessed, 
"  each  in  a  fee-simple  absolute  of  an  undivided  share  or  interest 
in  "  the  land,  and  the  action  "is  for  the  whole  land  so  claimed, 
and  not  for  any  parcel "  thereof.  Held :  The  declaration  is  suf- 
ficient under  Code  1887,  Section  2730. 

Section  2734. 

In  the  case  of  Jaines  River  cfe  Kanawha  Company  vs.  Robin- 
son, 16  Grat.,  434,  decided  January  26,  1864,  it  was  held :  A 
plea  in  abatement  is  admissible  in  an  action  of  ejectment.  The 
act  refers  only  to  pleas  in  bar  of  the  action.  Qucere :  If  a  de- 
fendant may  not  plead  in  abatement  and  in  bar  at  the  same 
time,  the  pleas  being  filed  at  the  proper  time?  A  defendant 
may  waive  his  plea  in  abatement  and  plead  in  bar  to  the  action. 
A  defendant  in  ejectment,  admitting  that  he  was  mistaken  as  to 
the  matter  pleaded  in  abatement,  and  upon  this  admission,  sub- 
mitting the  issue  upon  the  plea  to  the  court,  at  the  same  time 
asking  leave  to  file  his  plea  of  not  guilty.  This  was  in  effect  a 
waiver  of  the  plea  in  abatement,  and  he  should  have  been  per- 
mitted to  file  the  plea  of  not  guilty. 

In  the  case  of  Reynolds  vs.  Cook,  83  Va.,  817,  decided  Novem- 
ber, 1887,  it  was  held :  In  ejectment,  the  only  plea  in  bar  of 
action,  in  whole  or  in  part,  is  the  plea  of  "not  guilty";  a  paper 
called  a  "  disclaimer,"  but  actually  in  the  nature  of  a  special 
plea,  should  be  rejected. 

Section  2735. 

In  the  case  of  Moody  et  ah.  vs.  McKim,  5  Munf.,  374,  decided 
February  1,  1817,  it  was  held  :  In  ejectment,  if  it  appears  from 
the  evidence  that  the  land  in  controversy  was  vacant  when  the 
defendant  came  to  the  possession  of  it,  peaceably  and  quietly, 
without  any  privity  between  him  and  the  lessors  of  the  plaintiff 
or  those  under  whom  they  claim,  the  plaintiff  cannot  recover 
upon  the  ground  of  the  prior  possession  of  the  lessors  without 
proving  twenty  years  uninterrupted  adverse  possession  on  their 
part,  or  on  the  part  of  those  under  whom  they  claim,  or  show- 
ing a  right  to  the  possession  by  the  death  and  seisin  in  the 
manner  prescribed  by  the  act  of  Assembly  of  some  person  under 
whom  they  claim. 

In  the  case  of  Butts  vs.  Blunt  et  als.,  1  Rand.,  255,  decided 
December,  1822,  it  was  held :  In  ejectment,  where  the  lessor  is 
a  fictitious  person  instead  of  the  lessee,  evidence  on  the  part  of 
the  plaintiff  not  going  to  show  a  title  in  the  lessor  ought  to  be 
excluded. 


438  Citations  to  the  Code  of  Virginia. 

Although  the  act  oi  jeofails  cures  any  objection  of  form  or 
substance  to  the  declaration  in  ejectment  after  issue  joined,  yet 
it  does  not  dispense  with  the  rule  that  the  evidence  must  be 
relevant  to  the  issue.  Depositions  ought  not  to  be  admitted  to 
a  suit  at  law  unless  it  appears  by  the  record  in  what  suit  and 
by  what  authority  they  were  taken,  and  that  the  witnesses  could 
not  attend  at  the  trial. 

In  the  case  of  Boiling  vs.  The  Mayor,  etc.,  of  Petershurg,  3 
Eand.,  563,  decided  December,  1825,  it  was  held:  In  a  writ  of 
right,  where  the  demandant  proves  an  actual  seisin  in  deed  or 
pedis  positive,  the  defendant  cannot  defend  himself  by  showing 
a  better  outstanding  title  in  another;  but  where  the  demandant 
relies  upon  a  constructive  seisin  the  tenant  may  show  an  elder 
patent,  or  better  title  in  another.  Where  the  mise  is  joined  on 
the  mere  right  it  is  not  competent  for  the  tenant  to  give  in  evi- 
dence non-tenure,  or  any  other  matter  in  abatement;  but  such 
matters  must  be  specially  pleaded  as  at  common  law. 

In  the  case  of  Taylor's  Devisees  vs.  Bumside,  1  Grat.,  165, 
decided  September,  1844.  On  the  trial  of  a  writ  of  right,  the 
demandants,  as  a  foundation  for  proof  of  an  entry  made  upon 
the  lands  in  controversy  by  their  agent,  offered  in  evidence  a 
power  of  attorney  executed  by  them  and  properly  authei]ticated, 
giving  authority  over  the  lands  in  controversy  to  their  said  agent, 
which  was  objected  to  by  the  tenant.  Held :  It  was  proper  evi- 
dence. 

In  order  to  trace  the  title  from  the  original  patentee  to  them- 
selves, the  demandants  offered  as  evidence  an  office  copy  of  the 
will  of  their  testator.  The  will  appears  to  have  three  attesting 
witnesses,  who  were  not  examined  on  its  probate,  but  it  was  ad- 
mitted to  probate  in  the  proper  court  upon  proof  of  two  other 
witnesses  that  it  was  wholly  written  by  the  testator.  Held: 
The  copy  was  legal  evidence. 

The  demandants  in  a  writ  of  right,  claiming  title  to  the  land 
in  controversy  under  a  patent  from  the  Commonwealth,  are  en- 
titled to  recover  the  land,  though  neither  they  nor  those  under 
whom  they  claim  have  entered  and  held  actual  possession  under 
their  grant,  in  the  absence  of  a  sufficient  legal  defence  on  the 
part  of  the  tenant. 

If  the  tenant  in  a  writ  of  right  would  protect  himself  by  the 
plea  of  the  statute  of  limitations,  he  must  show  that  he  entered 
on  the  land  in  controversy,  claiming  the  same  under  his  junior 
grant  when  the  demandants  had  not  actual  possession  thereof 
under  their  elder  patent,  and  took  and  held  actual  possession 
thereof  by  residence,  improvement,  cultivation,  or  other  open, 
notorious  and  habitual  acts  of  ownership,  and  so  continued  the 
same  under  his  said  claim  for  more  than  twenty-five  years  be- 
fore the  commencement  of  the  demandants'  suit. 


Citations  to  the  Code  of  Yirginia.  439 

If  the  tenants,  or  those  under  whom  he  claims,  have  aban- 
doned their  possession  within  the  twenty-five  years,  the  statute 
of  limitations  is  no  bar  to  the  demandants'  title  under  his  elder 
patent. 

The  tenant  cannot  sustain  his  defence  of  continued  adversary 
possession  so  as  to  make  the  statute  a  bar,  if  the  demandants  or 
those  under  whom  they  claim,  have  within  the  period  of  twenty- 
five  years  before  bringing  the  action  entered  upon  the  land  in 
controversy,  and  taken  actual  possession  thereof  by  residence, 
improvement,  cultivation,  or  other  open  and  notorious  and 
habitual  acts  of  ownership. 

The  entry  of  the  demandant,  or  those  under  whom  he  claims, 
upon,  and  possession  of  the  land  within  his  elder  grant,  not  em- 
braced by  the  junior  grant  of  the  tenant,  cannot  oust  the  tenant 
if  at  the  time  of  the  entry  of  the  demandant  the  tenant  had 
actual  possession  of  the  land  embraced  by  his  grant.  Quaere  : 
If,  in  this  last  case,  the  possession  of  the  tenant  is  limited  by 
the  entry  and  possession  of  the  demandant  to  his  close,  or  if  it 
extends  to  the  boundaries  of  his  patent  ? 

In  the  case  of  Overton  s  Heirs  vs.  Davisson,  1  Grat.,  211,  de- 
cided September,  1844,  it  was  held :  In  a  controversy  concern- 
ing the  boundary  or  locality  of  a  tract  of  land  granted  by  the 
Commonwealth  pursuant  to  a  survey,  the  calls  and  descriptions 
of  a  survey  made  by  the  same  surveyor,  about  the  same  time,  or 
recently  thereafter,  of  a  co-terminious  or  neighboring  tract,  upon 
which  last-mentioned  survey  a  grant  has  also  issued  from  the 
Commonwealth,  whether  to  a  party  to  the  controversy  or  a 
stranger,  is  proper  evidence  upon  such  question  of  boundary  or 
locality,  unless  plainly  irrelevant. 

In  a  controversy  concerning  the  boundary  or  locality  of  a 
tract  of  land  granted  by  the  Commonwealth  upon  a  survey  made 
by  a  duly  authorized  surveyor,  declarations  by  such  surveyor, 
or  by  chain-carriers  who  assisted  him  in  making  such  survey,  or 
by  other  persons  who  were  present  at  such  survey,  of  the  acts 
done  b}',  or  under,  the  authority  of  such  surveyor,  in  making 
such  survey,  are  admissible  evidence,  unless  clearly  irrelevant, 
provided  that  such  declarations  are  not  made  post  litam  motem, 
and  are  not  in  contradiction  of  such  surveyor's  ofiicial  report 
of  such  survey,  and  that  the  persons  who  made  the  declara- 
tions are  dead  at  the  time  of  the  trial. 

On  a  trial  of  the  writ  of  right  upon  the  mise  joined  on  the 
mere  right,  the  tenant  is  entitled  to  the  opening  and  conclusion 
of  the  case  before  the  jury. 

When  land  which  is  the  subject  of  controversy  is  embraced 
by  conflicting  grants  from  the  Commonwealth  to  different  per- 
sons, and  the  junior  patentee  enters  thereupon  and  takes  and 
holds  actual  possession  of  any  part  thereof,  claiming  title  to  the 


440  Citations  to  the  Code  of  Virginia. 

whole  under  his  grant,  such  adversary  possession  of  part  of  the 
land  in  controversy  is  an  adversary  possession  of  the  whole,  to 
the  extent  of  the  limits  of  the  junior  patentee,  and  to  that  ex- 
tent is  an  ouster  of  the  seisin  or  possession  of  the  older 
patentee,  if  the  latter  has  had  no  actual  possession  of  any  part 
of  the  land  within  the  limits  of  his  grant. 

In  the  case  above  stated,  if  the  older  patentee  is  in  the  actual 
possession  of  any  part  of  the  land  in  controversy  at  the  time  of 
the  entry  thereon  by  the  junior  patentee,  then  the  latter  can  give 
no  adversary  possession  beyond  the  limits  of  his  mere  enclosure 
without  an  actual  ouster  of  the  older  patentee  from  the  whole  of 
the  land  in  controversy. 

Upon  the  question  of  adversary  possession,  whether  the  land 
in  controversy  is  embraced  by  one  or  several  co-terminous  grants 
of  the  older  or  younger  patentee,  in  either  case  the  land  granted 
to  the  same  person  by  several  patents  is  to  be  regarded  as 
forming  one  entire  tract.  Quoere  :  Whether  the  possession  of 
the  junior  patentee  will  be  limited  to  his  enclosure  by  the  actual 
possession  of  the  elder  patentee  of  a  part  of  the  land  embraced 
in  his  grant  and  not  embraced  within  the  limits  of  the  grant  to 
the  junior  patentee? 

To  constitute  an  adversary  possession  of  land,  there  must  be 
an  actual  occupation  of  some  part  of  the  land  in  controversy, 
or  the  use  or  enjoyment  of  some  parts  thereof,  by  acts  of  owner- 
ship equivalent  to  such  actual  occupation,  and  such  adversary 
possession  cannot  be  acquired  by  the  open  exercise  of  acts  of 
ownership  over  the  same  falling  short  of  such  actual  occupa- 
tion, use  or  enjoyment.  While  patented  lands  remain  completely 
in  a  state  of  nature,  they  are  not  susceptible  of  a  disseisin  or 
ouster  of,  or  adversary  possession  against,  the  older  patentee, 
unless  by  acts  of  ownership  effecting  a  change  in  their  condi- 
tion. 

A  possession  of  land  not  held  under  a  grant  from  the  com- 
monwealth prior  to  the  emanation  of  any  patent  therefore  to  a 
third  person  cannot  constitute  an  adversary  possession  thereof. 

The  elder  patent  of  the  Commonwealth  confers  seisin  of  the 
land  embraced  in  therein,  though  at  the  time  of  its  emanation 
there  was  an  actual  occupation  of  the  land  by  another  person. 

In  a  controversy  between  parties  claiming  land  under  the 
elder  and  junior  patentee,  the  party  claiming  under  the  latter, 
to  protect  his  interest  by  the  defence  of  the  statute  of  limita- 
tions, must  show  an  actual  possession  of  the  lands  in  contro- 
versy, since  the  emanation  of  the  elder  patent,  for  the  time  of 
limitation  fixed  by  the  statute.  If  the  possession  of  the  tenant 
in  possession  was  suflScient  to  bar  the  action  of  the  ancestor  of 
the  demandants  at  the  time  of  his  death,  it  is  sufficient  to  bar 
the  action  of  his  heirs. 


Citations  to  the  Code  of  Virginia.  441 

The  beginning  corner  of  a  survey  or  of  several  dependant 
surveys  being  fixed,  in  the  absence  of  proof  of  any  other  corners 
or  boundaries,  and  of  any  calls  for  natural  objects  conflicting 
with  the  calls  for  courses  and  distances  in  the  patents  issued  on 
said  surveys,  the  identity  of  the  land  embraced  therein  is  to  be 
ascertained  by  the  courses  and  distances  of  the  patents  begin- 
ning at  the  fixed  corner. 

A  mistake  in  a  patent  calling  for  an  object  where  the  same  is 
not  found,  does  not  effect  its  validity. 

In  the  case  of  Tapscott  vs.  Cohhs  et  als.,  11  Grat.,  172,  de- 
cided April,  1854,  it  was  held:  A  party  in  a  peaceable  posses- 
sion of  land  is  entered  upon  and  ousted  by  one  not  having  title 
to,  or  authority  to  enter  upon  the  land.  The  party  ousted  may 
recover  the  premises  in  ejectment  upon  his  possession  merely, 
and  his  right  to  recover  cannot  be  resisted  by  showing  that 
there  is  or  may  be  an  outstanding  title  in  another,  but  only  by 
showing  that  the  defendant  himself  either  has  title  or  authority 
to  enter  under  the  title. 

Where  an  ancestor  dies  in  possession  of  land,  the  presump- 
tion of  law  is,  that  the  heir  is  in  possession  after  the  death  of 
the  ancestor;  and  in  the  absence  of  all  evidence  on  the  point, 
the  heir  may  maintain  ejectment  upon  the  strength  of  his  pos- 
session against  one  who  has  entered  upon  the  land  without  title, 
or  authority  to  enter  under  the  title  outstanding  in  another. 

Section  2736. 

In  the  case  of  Doe  {Lessee  of  Taylor  et  als.)  vs.  Hill,  10  Leigh, 
457  (2d  edition,  477),  decided  July,  1839,  it  was  held:  In  eject- 
ment against  a  tenant  in  common  by  a  co-tenant,  if  the  jury  re- 
turn a  special  verdict,  actual  ouster  must  be  found  therein  to 
entitle  the  plaintiff  to  judgment. 

The  necessity  of  finding  this  fact  is  not  dispensed  with  by  the 
«ntry  made  in  Virginia,  when  the  tenant  in  possession  is  ad- 
mitted defendant,  that  he  "  confesses  the  lease,  entry  and  ouster 
in  the  declaration  supposed,  and  agrees  to  insist  on  the  title 
only  at  the  trial."  The  confession  that  Richard  Doe  ousted 
John  Dos  is  not  a  confession  that  the  real  defendant  ousted 
the  real  plaintiff;  and  when  this  latter  ouster  forms  a  part  of 
the  plaintiff's  title  to  recover  (as  it  does  between  tenants  in 
common)  the  fact  of  such  ouster  must  be  proved. 

In  the  case  of  Purcell  and  Wife  et  als.  vs.  Wilson,  4  Grat., 
16,  decided  April,  1847,  it  was  held:  The  possession  of  one 
co-parcener  or  tenant  in  common  being  the  possession  of  all, 
none  in  possession  of  the  whole  subject  can  avail  themselves  of 
such  possession  as  a  defence  under  the  statute  of  limitation 
against  the  rest,  without  an  actual  disseisin  or  ouster  of  their 
•co-parceners  or  co-tenants. 


442  Citations  to  the  Code  of  Virginia. 

A  special  verdict  in  a  writ  of  right,  where  the  defence  is  the 
statute  of  limitations,  must  find  either  an  actual  disseisin  or 
ouster  of  the  demandants,  or  those  under  whom  they  claim,  or 
facts  in  which  law  constitutes  such  actual  disseisin  or  ouster. 

Though  a  great  lapse  of  time,  with  other  circumstances,  may 
warrant  the  presumption  of  a  disseisin  or  ouster  by  one  co- 
parcener or  tenant  in  common  of  another  not  laboring  under 
disabilities,  this  presumption  is  a  matter  of  evidence  for  the 
consideration  of  the  jury,  and  not  a  question  of  law  for  the  de- 
cision of  the  court  upon  a  special  verdict. 

In  the  case  of  Stonestreet  et  als.  vs.  Doyle  et  als.,  75  Va.,  356, 
decided  March  10,  1881,  it  was  held:  The  possession  of  one 
joint  tenant,  tenant  in  common,  or  co-parcener,  is  prima  facie 
the  possession  of  all  the  other  co-tenants ;  and  the  mere  posses- 
sion of  the  one  will  be  taken  to  be  adverse  to  the  title  and  pos- 
session of  the  other.  Yet  if  the  defendants  prove  actual  ouster 
or  other  notorious  acts,  amounting  to  a  total  denial  of  the  plain- 
tiffs' rights  as  co-tenants,  and  of  such  a  character  as  to  afford 
direct  or  presumptive  proof  that  the  other  co-tenants  or  plain- 
tiffs had  had  knowledge  of  the  claim  of  exclusive  ownership 
thus  set  up  and  held  by  the  defendants,  or  those  under  whom 
they  claim,  such  possession  of  the  land  in  suit  held  continu- 
ously and  uninterruptedly  under  such  circumstances  under  color 
of  title  for  the  length  of  time  prescribed  by  law,  constitutes  ad- 
verse possession,  and  will  ripen  into  a  good  and  sufficient  title 
in  the  defendants.  Qiicere :  If  a  mere  claim  of  title,  as  distin- 
guished from  color,  would  be  sufficient  ? 

Section  2738. 

In  the  case  of  Camden  et  als  vs.  Hashill,  3  Rand.,  462,  de- 
cided October,  1825,  it  was  held :  If  several  demises  are  laid  in 
the  declaration  from  several  lessors,  and  the  court  give  judg- 
ment for  the  plaintiff  to  recover  "his  terms  yet  to  come,"  the 
judgment  will  be  sustained,  and  the  plaintiff  can  only  have  one 
execution. 

In  the  case  of  Stuart's  Heirs,  etc.,  vs.  Coalter,  4  Rand.,  74, 
decided  February,  1826,  it  was  held:  An  ejectment  may  be 
brought  against  several  persons  in  possession  of  any  part  of  the 
tract  of  land  claimed  by  the  lessor  of  the  plaintiff. 

Section  2740. 

The  reference  to  1  Grat.,  24,  is  an  error. 

In  the  case  of  Taylor's  Devisees  vs.  Bumside,  1  Grat.,  165,^ 
decided  September,  1844,  it  was  held :  The  entry  of  the  demand- 
ant, or  those  under  whom  he  claims,  upon,  and  possession  of 
the  land  within  his  elder  grant,  not  embraced  by  the  junior 
grant  of  the  tenant,  cannot  oust  the  tenant,  if  at  the  time  of  the 


Citations  to  the  Code  of  Virginia.  443 

entry  of  the  demandant  the  tenant  had  actual  possession  of  the 
land  embraced  by  his  grant.  Qucere  :  If  in  this  last  case  the 
possession  of  the  tenant  is  limited  by  the  entry  possession  of 
the  demandant  to  his  close,  or  if  it  extends  to  the  boundaries  of 
his  patent? 

In  the  case  of  Koiner  vs.  RankirCs  Heirs,  11  Grat.,  420,  de- 
cided July,  1854,  it  was  held :  The  effect  of  a  patent  issued  upon 
an  inclusive  survey,  and  the  right  of  the  tenant  claiming  under 
it  to  show  possession  under  a  color  of  title,  is  the  same  as  in 
other  grants.  He  may  give  in  evidence  the  entries  for  the  dif- 
ferent tracts  embraced  in  the  inclusive  survey,  the  order  of  the 
court  authorizing  the  survey,  and  the  survey  made  in  pursuance 
of  the  order.  But  he  cannot  show  possession  further  back  than 
the  senior  grant.  To  protect  himself  under  the  statute  of  lim- 
itations, the  tenant  must  show  continued  adversary  possession 
for  the  time  of  limitation  for  some  part  of  the  land  in  contro- 
versy. Actual  possession  of  a  part  of  his  land  outside  of  the 
boundaries  of  the  demandant's  elder  patent  is  not  sufficient. 

Section  2741. 

In  the  case  of  Davis  vs.  Teays  et  als.,  3  Grat.,  283  (2d  ed.  270), 
decided  July,  1846,  it  was  held :  The  equitable  defence  under  the 
statute  is  also  limited  to  mortgages  and  deeds  of  trust,  where  the 
mortgage  money  has  been  fully  paid,  or  the  trust  completely  per- 
formed ;  or  to  sales,  where  the  vendee  has  paid  all  the  purchase- 
money,  and  performed  everything  incumbent  on  him,  so  as  to 
entitle  him  to  a  specific  execution  of  the  contract  in  equity,  and 
a  conveyance  of  the  legal  title,  without  any  condition  proper  in 
equity  to  be  on  him  imposed. 

It  must  be  a  sale,  and  not  a  partnership  in  the  acquisition 
of  lands,  and  the  terms  of  the  contract  must  be  plain. 

In  the  case  of  Dohson  vs.  Culpeper  and  ^ife,  23  Grat.,  352, 
decided  March,  1873.  C.  and  wife  sell  her  land  to  D.,  but  do 
not  convey  it  to  him.  D.  fails  to  comply  with  his  contract,  and 
C.  and  wife  convey  the  land  to  G.,  the  son  of  C.'s  wife,  and  then 
C.  and  wife  bring  unlawful  detainer  against  D.  to  recover  the 
land.  Held :  If  D.  had  complied  with  his  contract  so  that  he 
was  entitled  to  a  conveyance,  he  might  have  set  up  the  defence 
under  the  statute  in  this  proceeding. 

Though  D.  cannot  question  the  title  of  C>  and  wife,  as  at  the 
time  of  the  sale,  he  may  show  in  his  defence  that  they  have  since 
conveyed  the  land  to  G.  By  their  conveyance  to  G.,  C.  and 
wife  lost  their  right  to  recover  the  land  from  D.,  and  the  action 
should  have  been  in  the  name  of  G.,  and  D.  could  not  ques- 
tion the  title  of  G. 

In  the  case  of  Suttle  vs.  R.  F.  dc  P.  R.  R.  Co.,  76  Va.,  284 
and  290. 


444  Citations  to  the  Code  of  Virginia. 

1.  Ejectment. — Legal  Title. — The  doctrine  generally  under- 
stood in  Virginia  is,  that  in  ejectment  the  plaintiff  must  show  a 
legal  title  in  himself,  and  a  present  right  of  possession  under  it 
at  the  time  of  the  commencement  of  the  action. 

2.  Idem. — Exceptions  to  this  doctrine.  Some  exceptions 
exist;  e.  g.,  one  in  peaceable  possession,  and  ousted  by  a  stranger 
without  title,  may  recover  in  ejectment  on  the  strength  of  his 
mere  previous  possession  ;  a  tenant  is  estopped  to  deny  the  title 
of  his  landlord,  etc. 

3.  Law  and  Equity  Courts. — In  no  State  is  the  distinction  be- 
tween these  courts  and  the  principles  governing  them  more  rig- 
idly adhered  to  than  in  this. 

4.  Ejectment. — Equitable  Defences. — The  doctrine  that  in 
ejectment  the  title  in  fee  must  prevail  over  a  mere  equitable  in- 
terest led  to  the  statutes  (Code  of  1873,  Chapter  131,  Sections 
20,  21)  allowing  equitable  defence  of  the  contract,  and  vendee 
has  fully  complied  with  all  the  terms,  so  as  to  entitle  him  in 
equity  to  conveyance,  without  condition. 

In  the  case  of  Nelson  vs.  Trvplett  ( Trustee)  et  als.,  81  Va.,  236, 
it  was  held:  The  doctrine  in  this  State  is,  that  in  ejectment  the 
plaintiff  must  show  a  legal  title  in  himself,  and  a  present  right 
of  possession  under  it  at  the  time  of  the  commencement  of  the 
action. 

A  decree  requiring  the  execution  of  a  conveyance  to  com- 
plainant, does  not  of  itself  vest  any  legal  title  in  him;  and 
such  decree  should  not  be  received  as  evidence  of  legal  title  in 
an  action  of  ejectment. 

Section  2742. 

In  the  case  of  Faulkner^ s  Administrator  vs.  BrockenhoroxigK^ 
4  Eand.,  245,  decided  May,  1826,  it  was  held :  Where  it  is  stip- 
ulated in  a  mortgage  that  the  money  shall  be  paid  on  or  before 
a  given  day,  and  it  is  paid  after  that  day,  the  mortgagee  is  not 
deprived  of  his  right  of  action  at  law  on  the  mortgage.  The 
acceptance  of  the  money  by  the  mortgagee,  after  the  day  ap- 
pointed for  payment,  does  not  change  the  rights  of  the  parties 
at  law. 

The  case  of  Davis  et  als.  vs.  Teays,  3  Grat.,  283,  referred 
to  here,  is  to  be  found  supra.  Section  2741. 

In  the  case  of  Hale  vs.  Home  et  als.,  21  Grat.,  112,  decided 
June,  1871.  The  equity  of  redemption  in  land  conveyed  in  trust 
to  secure  debts  is  subject  to  the  lien  of  judgments  subsequently 
obtained,  in  the  order  of  their  priority  in  date. 

M.  conveys  land  in  trust  to  pay  specified  debts,  and  after- 
wards sells  and  conveys  it  to  G.  G.  has  good  title  to  the  land 
subject  to  the  trust,  and  when  the  trust  is  discharged,  he  is,  by 
operation  of  the  statute  (Code  1873,  Chapter  135,  Section  31,  p. 


I 


Citations  to  the  Code  of  Virginia.  445 

612)  entitled  to  hold  the  land  at  law  and  in  equity  though  the 
trust  has  not  conveyed  it  to  him. 

M.  conveys  land  to  H.  in  trust  to  secure  certain  debt.  After 
the  deed  is  recorded,  C.  and  D.  recover  judgment  against  M., 
and  then  M.  and  H,,  and  the  principal  creditor  in  the  trust  deed 
unite  to  convey  and  sell  the  land  to  G.,  and  G.  pays  one-half 
cash  and  gives  his  notes  in  one  and  two  years  for  the  balance 
of  the  purchase-money;  all  of  them  having  notice  of  the  judg- 
ments. H.  proceeds  at  once  to  pay  off  the  debts  secured  by 
the  deed,  and  pays  the  whole  balance  of  the  purchase-money  to 
M.  before  the  notes  of  the  purchaser  are  due.  Held :  The  pay- 
ment by  H.  to  M.  was  in  his  own  wrong,  and  C.  and  D.  are 
entitled  to  have  their  judgments  satisfied  out  of  the  purchase- 
money  due  from  G. 

C.  and  D.  having  filed  their  bill  to  have  their  judgments  sat- 
isfied out  of  the  land,  to  which  the  vendors  and  purchasers  are 
parties,  G.  may  enjoin  the  collection  of  the  money  from  him 
by  H.  and  pay  it  to  the  court. 

The  judgments  of  D.  being  in  his  name  for  the  benefit  of 
J.,  he  sues  in  his  own  name  and  without  making  J.  a  party, 
but  there  is  no  objection  to  this  in  the  circuit  court,  and 
the  decree  is  in  favor  of  D.  This  is  not  error,  but  for  con- 
formity it  may  be  amended  by  the  appellate  court  and  be 
affirmed. 

Though  the  bill  seeks  to  set  aside  the  deed  for  fraud,  yet,  as 
it  makes  a  case  entitling  C.  and  D.  to  be  paid  out  of  the  pur- 
chase-money of  the  land,  and  asks  for  general  relief,  though  the 
fraud  is  not  proved,  they  may  have  the  purchase-money  applied 
to  the  payment  of  their  judgments. 

For  the  reference  to  76  Va.,  284  and  290,  see  the  case  of 
Suttle  vs.  R.  F.  <&  P.  R.  R.  Co.^  cited  supra.  Section  2741. 

Section  2744. 

In  the  case  of  Garrard  vs.  Henry,  6  Rand.,  110,  decided 
February,  1828,  it  was  held  :  In  a  writ  of  right  brought  by  several 
demandants,  the  mise  is  joined  on  the  mere  right,  and  the  jury 
find  for  the  demandants,  with  the  addition  of  this  fact,  that  one 
of  the  demandants  was  dead  before  the  institution  of  the  suit, 
leaving  children.  This  latter  clause  shall  be  rejected  as  sur- 
plusage, and  the  remainder  of  the  verdict  received.  So  if  the 
jury  add  that  one  of  the  demandants  was  tenant  in  common 
with  the  others  (and  therefore  could  not  maintain  this  writ 
jointly  with  them),  this,  like  the  other  finding,  being  matter  of 
abatement,  cannot  be  given  in  evidence  nor  found  by  the  jury 
on  the  mise  joined,  but  must  be  pleaded  in  abatement. 

In  the  case  of  Callis  tt  als.  vs.  Kemp  et  ah.,  11  Grat.,  78, 
decided  April,  1854,  it  was  held:  In  ejectment  the  jury  set  out 


446  Citations  to  the  Code  of  Virginia. 

the  wills  of  a  grandfather  and  father,  and  if  the  son  who  is  dead 
took  under  his  father's  will  they  find  for  the  plaintiff.  If  he 
took  under  the  grandfather's  will  they  find  for  the  defendants. 
The  verdict  is  sufficiently  certain,  and  submits  the  single  ques- 
tion upon  the  construction  of  the  wills  to  the  court. 

Though  in  ejectment  the  plaintiffs  in  their  declaration  claim 
the  whole  of  a  tract  of  land,  the  jury  may  find  for  the  plaintiffs 
for  an  undivided  interest  in  it. 

Though  where  less  land  is  recovered  than  is  demanded,  the 
boundaries  of  the  land  recovered  should  be  designated,  yet 
where  an  undivided  interest  in  it  is  recovered,  it  is  impossible 
to  set  out  the  boundaries,  but  the  interest  being  certain  that  is 
sufficient. 

In  the  case  oi  Reynolds  vs.  Cook,  83  Va.,  817,  decided  Novem- 
ber, 1887.  Declaration  charged  that  defendant  unlawfully 
withheld  possession  of  whole  limestone  tract.  The  evidence 
showed  that  defendant  claimed  no  other  right  than  to  quarry 
and  remove  limestone  from  the  land.  Verdict :  We,  the  jury, 
find  the  defendant  not  guilty.  Held :  The  verdict  was  contrary 
to  the  evidence.  It  should  have  been  for  the  plaintiff,  except 
as  to  the  right  to  quarry  and  remove  limestone. 

In  the  case  of  Messick  vs.  Thomas,  84  Va.,  891,  decided  May 
10,  1888.  Where  the  declaration  averred  that  plaintiff  was 
possessed  of  an  estate  in  fee,  and  defendant  enters  upon  this 
estate  and  unlawfully  withholds  possession  thereof  from  the 
plaintiff,  and  defendant  pleads  not  guilty,  verdict  is :  We,  the 
jury,  find  for  the  plaintiff  that  he  is  entitled  in  fee  to  the  whole 
of  the  premises  in  his  declaration  described,  and  that  all  the 
defendants  were  in  possession  of  a  part  thereof,  or  claimed 
title  to  a  part,  at  the  commencement  of  his  tsuit.  Held :  The 
verdict  responds  to  the  issue. 

Where  the  premises  are  described  in  declaration  with  "con- 
venient certainty,"  and  verdict  is  that  plaintiff  is  entitled  in  fee 
to  "the  whole  of  the  premises  in  the  declaration  described,"  such 
verdict  is  not  defective  for  uncertainty. 

When  defendant  at  trial  proves  that  he  is  in  possession  of 
and  claiming  title  to  only  part,  verdict  and  judgment  for  plain- 
tiff for  the  whole  land  claimed  in  the  declaration  is  not  erron- 
eous, or  at  least  not  one  whereby  defendant  is  injured. 

Section  2746. 

In  the  case  of  McMurray  vs.  Oneal,  1  Call,  246  (2d  edition, 
216),  decided  Apiil  26,  1798,  it  was  held :  If  in  ejectment  the 
jury  find  "  for  the  plaintiff  one  cent  damages,"  the  court  may 
extend  the  verdict  and  make  it  read,  "We  of  the  jury  find  for 
the  plaintiff  the  lands  in  the  declaration  mentioned  and  one  cent 
damaijes." 


I 


Citations  to  the  Code  of  Virginia.  447 

In  the  case  of  Clay  vs.  White  et  als.,  1  Munf.,  162,  decided 
April  26,  1810,  it  was  held :  The  plaintiff  in  ejectment  may  re- 
cover less  land  than  the  quantity  stated  in  his  declaration.  But 
if  the  jury  find  a  special  verdict,  showing  the  plaintiff  entitled 
to  a  certain  number  of  acres,  part  of  the  tract  sued  for,  and  do 
not  specify  boundaries  of  such  part  with  so  much  precision  as 
that  possession  thereof  may  with  certainty  be  delivered,  a  vejiire 
de  novo  ought  to  be  awarded. 

In  the  case  of  Gregory  vs.  Jackson,  6  Munf.,  25,  decided  No- 
vember 8,  1817,  it  was  held :  A  verdict  in  ejectment,  finding  for 
the  plaintiff,  in  general  terms,  a  certain  "number  of  acres,  part 
of  the  premises  in  the  declaration  mentioned,"  without  design- 
ing the  boundaries  of  such  part,  or  referring  to  some  certain 
standard  to  supply  such  defect,  is  too  uncertain  to  warrant  a 
judgment  upon  it. 

In  the  case  of  Norvell  vs.  Camm  et  als.,  2  Rand.,  68,  decided 
December  5,  1823,  it  was  held :  If  any  portion  of  the  land  de- 
scribed in  a  writ  of  right  is  included  in  the  patent  under  which 
the  demandant  claims,  it  is  sufficientl}'  identified. 

In  the  case  of  Caliis  et  als.  vs.  Kemp  et  als.,  11  Grat.,  78,  de- 
cided April,  1854,  it  was  held :  In  ejectment  the  jury  set  out  the 
wills  of  a  grandfather  and  father;  and  if  the  son  who  is  dead 
took  under  his  father's  will,  they  find  for  the  plaintiff;  if  he 
took  under  the  grandfather's  will,  they  find  for  the  defendants. 
The  verdict  is  sufficiently  certain,  and  submits  the  single  ques- 
tion upon  the  construction  of  the  wills  to  the  court. 

Though  in  ejectment  the  plaintiffs  in  their  declaration  claim 
the  whole  of  a  tract  of  land,  the  jury  may  find  for  the  plaintiffs 
for  an  undivided  interest  in  it. 

Though  where  less  land  is  recovered  than  is  demanded,  the 
boundaries  of  the  land  recovered  should  be  designated,  yet  where 
an  undivided  interest  in  it  is  recovered,  it  is  impossible  to  set  out 
the  boundaries,  but  the  interest  being  certain  that  is  sufficient. 

Section  2749. 

In  the  case  of  Boiling  vs.  Teel  et  als.,  76  Va.,  487  and  495. 

6.  Pendente  Lite. — Several  plaintiffs,  after  suit  brought,  aliened 
their  interest  in  the  land.  Held :  Such  alienation  cannot  pre- 
vent their  recovery  for  benefit  of  the  alienee.  Right  to  recover 
at  commencement  of  suit  is  all  required  by  Code  1873,  Chap- 
ter 131. 

Section  2750. 

In  the  case  of  Camden  et  als.  vs.  HasTcill,  3  Rand.,  462,  de- 
cided October,  1825,  it  was  held :  If  several  demises  are  laid  in 
the  declaration  from  several  lessors,  and  the  court  give  judg- 
ment for  the  plaintiff  to  recover  "  his  terms  yet  to  come,"  the 


448  Citations  to  the  Code  of  Virginia. 

judgment  will  be  sustained,  and  the  plaintiff  can  have  only  one 
execution. 

Section  2751. 

In  the  case  of  Alexander  vs.  Herbert,  2  Call,  508  (2d  edition, 
427),  decided  October  15,  1800,  it  was  held:  After  judgment  for 
the  plaintiff  in  ejectment,  trespass  does  not  lie  against  one  who 
was  no  party  to  the  suit,  without  proving  an  actual  trespass. 

In  the  case  of  Purcell  and  Wife  et  als.  vs.  Wilson,  4  Grat.,  16, 
decided  April,  1847,  it  was  held :  The  act,  1  Kev.  Code,  Chapter 
118,  Section  1,  p.  468,  authorizes  the  recovery  of  damages 
as  may  be  recovered  in  actions  of  trespass  for  mesne  profits. 
And  as  from  the  form  of  the  pleading  the  statute  of  limitations 
applicable  to  the  mesne  profits  cannot  be  pleaded,  the  tenant 
may  give  it  in  evidence  upon  the  trial,  and  the  demandant's  re- 
covery of  mesne  profits  will  be  for  five  years  next  before  bring- 
ing the  writ  of  right  down  to  the  recovery  of  possession. 

In  the  case  of  Goodioin  et  als.  vs.  Myers,  16  Grat,,  336,  de- 
cided November  20,  1862,  it  was  held  :  In  actions  of  ejectment, 
if  there  is  a  claim  by  the  plaintiff  for  mesne  profits  and  dam- 
ages for  waste,  and  by  defendant  for  improvements,  both  claims 
must  be  passed  upon  by  the  same  jury. 

Where  the  statements  are  filed  with  the  declaration  and  plea, 
the  jury  sworn  to  try  the  issue  in  ejectment  may  make  all  the 
inquiries  required  at  the  same  time  that  they  try  the  issue,  or 
the  inquiries  may,  if  the  court  should  so  order,  be  made  by  the 
same  jury  after  the  verdict  on  the  title  is  recorded,  or  by  a  new 
jury  to  be  empaneled. 

If  defendant  claims  for  improvements  on  the  land,  the  plain- 
tiff may  at  any  time  before  a  judgment  is  rendered  on  the  assess- 
ment of  the  valne  of  the  improvements,  though  after  the  jury 
which  tried  the  issue,  or  passed  upon  the  defendant's  claim  for 
improvements  has  been  discharged,  require  that  the  value  of  his 
estate  in  the  premises,  without  the  improvements,  shall  also  be 
ascertained,  and  this  inquiry  is  to  be  made  by  another  jury. 

The  value  of  the  plaintiff's  estate  in  the  premises,  without  the 
improvements,  is  to  be  ascertained  as  at  the  time  when  the  as«- 
sessment  of  the  value  of  the  improvements  was  made. 

Section  2752. 

In  the  case  of  James  River  and  Kanawa  Co.  vs.  Lee,  16  Grat., 
424,  decided  November  23,  1863,  it  was  held :  An  office  judg- 
ment in  an  action  of  ejectment  does  not  become  final  without 
the  intervention  of  the  court  or  jury,  but  there  ought  in  every 
such  case  to  be  an  order  for  an  inquiry  for  damages. 

In  the  case  of  SmitJison  vs.  Briggs  et  ux.,  33  Grat.,  180,  de- 
cided April  15,  1880,  it  was  held:  An  office  judgment  in  an 


Citations  to  the  Code  of  Virginia.  449 

action  of  ejectment  does  not  become  final  without  the  interven- 
tion of  a  court  or  jury. 

Section  2754. 

In  the  case  of  Goodwin  vs.  Myers,  16  Grat.,  336,  decided 
November  20,  1862,  it  was  held:  In  actions  of  ejectment,  if 
there  is  a  claim  by  the  plaintiff  for  mesne  profits  and  damages 
for  waste,  and  by  defendant  for  improvements,  both  claims  must 
be  acted  upon  by  the  same  jury. 

Where  the  statements  are  filed  with  the  declaration  and  plea, 
the  jury  sworn  to  try  the  issue  in  ejectment  may  make  all  the 
inquiries  required  at  the  same  time  that  they  try  the  issue,  or 
the  inquiries  may,  if  the  court  should  so  order,  be  made  by  the 
same  jury,  after  the  verdict  on  the  title  is  recorded,  or  by  a  new 
jury  to  be  empaneled. 

If  defendant  claims  for  improvements  on  the  land,  the  plain- 
tiff may  at  any  time  before  a  judgment  is  rendered  on  the  as- 
sessment of  the  value  of  the  improvements,  though  after  the  jury 
which  tried  the  issue  or  passed  upon  the  defendant's  claim  for 
provements  has  been  discharged,  require  that  the  value  of  his 
estate  in  the  premises,  without  the  improvements,  shall  also  be 
ascertained,  and  this  inquiry  is  to  be  made  by  another  jury. 

The  value  of  the  plaintiff's  estate  in  the  premises,  without  the 
improvements,  is  to  be  ascertained  at  the  time  when  the  as- 
sessment of  the  improvements  was  made. 

Section  2756. 

In  the  case  of  Chapman  vs.  Armistead,  4  Munf.,  382,  decided 
March  18,  1815,  it  was  held :  If  a  debtor  having  taken  the  oath 
of  insolvency,  afterwards  buy  a  tract  of  land  of  commissioners, 
under  a  decree  of  chancery,  and  convey  it  by  deed  of  bargain 
and  sale,  the  purchaser  from  him  is  entitled  to  recover  in  eject- 
ment against  the  defendant  in  chancery  withholding  the  posses- 
sion, whatever  the  claims  of  such  vendor's  creditors  may  be. 

The  whole  effect  of  a  judgment  for  the  plaintiff  in  ejectment 
is  to  put  the  lessor  of  the  plaintiff  into  possession  of  the  land, 
and  the  only  point  decided  is,  that  he  has  a  better  title  to  the 
possession  then  the  defendant. 

In  the  case  of  Pollard  vs.  Baylors  et  als.,  6  Munf.,  433,  de- 
cided November  27,  1819,  it  was  held:  No  verdict  and  judg- 
ment in  ejectment  can  be  relied  on  as  a  bar  to  a  subsequent 
ejectment,  though  for  the  same  land,  and  between  the  same  de- 
fendants and  lessors  of  the  plaintiffs,  the  fictitious  plaintiffs 
being  not  the  same ;  hence  the  statute  changing  the  law. 

Section  2757. 
In  the  case  of  Leonard  vs.  Henderson^  23  Grat.,  331,  decided 
March,  1873,  it  was  held :  The  saving  in  favor  of  infants,  married 
29 


450  Citations  to  the  Code  op  Virginia. 

women,  or  insane  persons,  in  Section  36,  Chapter  135,  of  tlie 
Code,  in  relation  to  actions  of  ejectment,  does  not  apply  to 
actions  of  ejectment  brought  by  the  lessee  to  recover  possesion 
of  the  leased  premises  which  had  been  recovered  by  the  land- 
lord under  Section  16,  Chapter  138,  of  the  Code  of  Virginia. 

CHAPTEE  CXXV. 

In  the  case  of  Hollingsworth  vs.  Funkhouser,  85  Va.,  448,  de- 
cided November  8, 1888,  it  was  held :  The  Virginia  statute,  alter- 
ing the  common  law  rule,  allows  as  a  set-off  to  the  plaintiff's 
claim  for  rent  and  damages  compensation  for  permant  improve- 
ments made  by  defendant  at  a  time  when  there  was  reason  to 
believe  the  title  good  under  which  he  was  holding  the  premises, 
not  exceeding,  however,  the  increase  in  value  to  the  same. 

Section  2760. 

In  the  case  of  Southall  vs.  McKeand,  Mayo,  et  als.,  1  Wash., 
336,  decided  at  the  fall  term,  1794,  it  was  held :  Where  tenant, 
without  notice,  proceeds  to  improve  lands,  and  the  adverse 
claimant,  knowing  his  right  to  the  premises,  allows  him  to  pro- 
ceed with  the  improvements  without  asserting  his  claim,  the 
improvements  will  not  be  lost  by  the  tenant. 

In  the  case  of  McKim  vs.  Moody  et  als.,  1  Rand.,  58,  decided 
March,  1822,  it  was  held:  Where  land  has  been  recovered  in 
ejectment,  and  the  defendant  goes  into  chancery  to  obtain  com- 
pensation for  improvements,  he  will  not  succeed  if  he  had  notice 
of  the  plaintiff's  title  at  the  time  of  making  the  improvement. 

In  the  case  of  Moriss  et  als.  vs.  TeiTcll,  2  Rand.,  6,  decided 
November  22,  1823,  it  was  held  :  A  purchaser  who  is  evicted  is 
not  entitled  to  compensation  for  improvements,  unless  the  owner 
has  been  guilty  of  fraud  by  permitting  such  improvements  with- 
out giving  notice  to  the  possessor,  or  in  gross  laches  in  assert- 
ing his  claim  after  he  is  apprised  of  it. 

The  reference  to  23  Grat.,  266,  is  to  a  treatise  more  in  the 
line  of  the  text-writer  than  useful  in  determining  the  authority 
of  decisions. 

In  the  case  of  Wood's  Executor  et  als.  vs.  Krebhs,  33  Grat., 
685,  decided  September,  1880,  it  was  held  :  On  a  bill  by  a  cred- 
itor, secured  by  a  deed  of  trust  to  subject  real  estate  to  the 
satisfaction  of  his  debt,  the  party  in  possession  claims  to  be  a 
purchaser  for  value  without  knowledge  of  the  deed.  The  lien 
being  enforced,  the  party  in  possession  may  be  allowed  for  his 
permanent  improvements  upon  the  land,  but  he  must  account 
for  the  rents  and  profits  as  an  off-set  to  his  claim. 

In  the  case  of  Burton  vs.  Mill  et  als.,  78  Va.,  468,  decided 
March  13,  1884,  it  was  held,  p.  483 :  No  allowance  is  made  for 
improvements  erected  by  one  who  is  not  a  hona  fide  purchaser. 


Citations  to  the  Code  of  Virginia.  451 

In  the  case  of  Hum  vs.  Keller,  79  Va.,  415,  decided  Septem- 
ber 25,  1884,  it  was  held :  Statute  providing  allowance  for  im- 
provements by  defendant,  against  whom  decree  or  judgment  is 
rendered  for  land  held  by  him  under  title  believed  by  him  to  be 
good,  applies  not  to  the  case  of  an  heir,  who,  after  suit  to  which 
he  is  a  party  to  settle  his  ancestor's  estate,  and  after  decree  to 
sell  the  real  estate,  but  before  it  is  all  sold,  buys,  under  hona  fide 
belief  that  it  would  be  unnecessary  to  sell  all  in  order  to  pay  the 
debts,  the  shares  of  his  co-heirs  in  a  part  of  the  unsold  real 
estate  and  erects  thereon  permanent  improvements. 

In  the  case  of  Ej)inger  vs.  Hall,  81  Va.,  94,  decided  Novem- 
ber 19,  1885,  it  was  held:  Persons  who  occupy  lands  under 
defective  titles,  and  make  thereon  permanent  and  beneficial  im- 
provements with  notice,  actual  or  constructive,  of  the  infirmity 
of  their  titles  cannot,  upon  the  recovery  of  said  lands  by  the 
rightful  owners,  obtain  compensation  for  said  improveinents. 
Means  of  notice,  with  the  duty  of  uaing  those  means,  is  equiva- 
lent to  actual  notice. 

Code  1873,  Chapters  131  and  132,  provides  for  the  allowance 
of  compensation  for  improvements  made  by  defendants  on  the 
premises  "at  a  time  when  there  was  reason  to  believe  the  title 
good  under  which  he  was  holding  said  premises." 

Section  2770. 
In  the  case  of  Goodwin  vs.  Merjers,  16  Grat.,  336  and  350,  de- 
cided November  20,  1862,  it  was  held:  The  value  of  the  plain- 
titl"s  estate  in  the  premises,  without  the  improvements,  is  to  be 
ascertained,  as  at  the  time  when  the  assessment  of  the  value  of 
the  improvements  was  made. 

Section  2771. 
In  the  case  of  Coi^  vs.  Porter  et  ah.,  33  Grat.,  278,  decided 
July,  1880,  it  was  held,  p.  287-88:  The  same  jury  which  tried 
the  case  on  its  merits  was  allowed  without  objection  from  either 
side  to  fix  the  value  of  the  land,  the  rents  and  profits  thereof, 
and  the  value  of  the  improvements  claimed  by  the  defendant. 
It  is  too  late  after  verdict  to  object  to  this  action  of  the  court. 

CHAPTEE  CXXVL 

In  the  case  of  Findaly  vs.  Smith  and  Wife  et  als.,  6  Munf., 
134,  decided  February  24,  1818,  it  was  held : ,  A  devise  of  cer- 
tain salt  works  to  the  testator's  wife  and  two  near  relations  of 
his  during  her  lifetime,  subject  to  the  payment  of  sundry  leg- 
acies to  a  large  amount,  was  construed,  in  this  case,  as  author- 
izing the  devisees  to  make  unlimited  use  of  the  salt  mineral,  and 
of  the  woodland  of  the  devisor,  from  which  fuel  was  supplied  in 
his  lifetime  for  carrying  on  the  works. 


462  Citations  to  the  Code  op  Vibginia. 

The  law  of  waste,  in  its  application  here,  must  be  varied  and 
accommodated  to  the  circumstances  of  our  new  and  unsettled 
country. 

In  the  case  of  Crouch  vs.  Puryear,  etc.,  1  Band.,  258,  decided 
December,  1822,  it  was  held:  It  is  not  waste  in  a  tenant  in 
dower  of  coal  lands  to  take  coal  to  any  extent  from  a  mine 
already  opened,  or  to  sink  new  shafts  into  the  same  veins  of 
coal.  The  tenant  may  penetrate  through  a  seam  already  opened, 
and  dig  into  a  new  seam  that  lies  under  the  first. 

In  the  case  of  McCauley' s  Executor  vs.  The  Dismal  Swamp 
Land  Company,  2  Eob.,  507,  decided  December,  1843.  A  hus- 
band dies  seised  of  lands  incapable  of  cultivation,  and  not  other- 
wise productive  or  valuable  than  by  working  the  timber  and 
making  sale  thereof  when  converted  into  shingles.  It  appears 
that  previous  to,  as  well  as  after  husband's  death,  the  timber  was 
worked  and  large  profits  derived  from  the  sale  of  shingles. 
Parties  coming  into  posseaeion  after  husband's  death,  under  a 
deed  of  trust  made  by  him  in  his  lifetime,  admit  his  widow's 
right  as  doweress  to  one-third  of  the  timber  worked,  and  for 
several  years  pay  her  one-third  of  the  proceeds  of  the  same. 
Payment  is  afterwards  stopped.  Held :  Those  in  possession  of 
the  land  af{er  the  husband's  death  shall  account  to  the  widow 
or  her  administrator  for  one-third  of  the  profits  received  by 
them  during  her  life,  subject  to  credit  for  the  payments  made  by 
them  to  the  widow. 

In  the  case  of  Harris  vs.  Thomas,  1  H.  &  M.,  17,  decided 
October  2,  1806,  it  was  held :  An  injunction  to  stay  waste  is 
generally  a  proper  subject  for  the  jurisdiction  of  a  court  of 
equity  notwithstanding  the  act  of  Assembly  gives  a  remedy  at 
law. 

In  the  case  of  Scott  vs.  Wharton,  2  H.  &  M.,  25,  decided  June 
1808,  it  was  held  :  An  injunction  to  stay  waste  ought  not  to  be 
granted  to  a  vendor  against  a  vendee  to  whom  he  has  sold  a 
tract  of  land  in  fee-simple,  retaining  the  title  as  a  security  for 
the  purchase-money,  unless  he  brings  his  suit  to  subject  the 
land  to  the  payment  of  the  purchase-money,  and  charges  the 
defendant  with  cutting  and  selling  timber  in  a  manner  calculated 
to  render  the  land  an  incompetent  security,  in  which  case  such 
injunction  to  stay  waste  pending  the  suit  may  be  awarded. 

In  the  case  of  Cutting  vs.  Carter,  4  H.  &  M.,  424,  decided 
spring  vacation  by  the  Superior  Court  of  Chancery  for  Kich- 
mond  District,  1809,  it  was  held :  Injunction  to  stay  waste  de- 
nied, there  appearing  no  impediment  to  the  action  of  waste  at 
law. 

In  the  case  of  Clarke  vs.  Curtis,  11  Leigh,  559  (2d  ed.,  p.  585),^ 
decided  February,  1841.  Upon  an  agreement  to  sell  to  three 
joint  purchasers  land  and  certain  personal  chattels  then  upon  it 


Citations  to  the  Code  of  Virginia.  453 

for  a  sum  in  gross,  to  be  paid  when  the  vendor  shall  have  made  a 
deed  of  the  land  and  a  bill  of  sale  of  the  personal  effects,  and 
that  the  purchase-money  shall  be  paid  in  equal  instalments  at 
future  days  appointed,  vendor,  without  making  such  convey- 
ances, delivers  possession  of  both  real  and  personal  property 
to  the  vendees.  Held :  The  making  the  conveyances  by  the 
vendor  is  not  a  condition  precedent  to  his  right  to  demand  the 
purchase -money. 

About  the  time  when  the  first  instalment  falls  due,  two  of  the 
joint  purchasers,  by  agreement  of  the  other  and  of  vendor,  are 
discharged  from  the  contract ;  and  by  new  agreement  between 
the  vendor  and  the  third  purchaser,  he  becomes  sole  purchaser 
of  same  subject,  for  same  price,  with  no  other  variance  but  that 
vendor  gives  further  indulgence  for  the  first  instalment;  and 
then  vendor  agrees  to  make  conveyance  of  the  property  to  the 
now  sole  purchaser  whenever  he  shall  make  such  payments  as 
they  shall  agree  upon ;  two  months  further  indulgence  is  given 
for  the  payment  of  first  instalment ;  purchaser  continues  in  pos- 
session of  the  real  and  personal  property,  but  vendor  makes  no 
conveyance.  Held :  A  bill  in  equity  lies  for  vendor  against 
vendee  for  specific  performance  of  the  whole  contract,  in  re- 
spect as  well  of  the  personal  property  as  of  the  real  property. 
To  preserve  the  security  of  the  vendor's  lien  unimpaired,  the 
court  may  properly  enjoin  the  purchaser  and  his  agent  from 
committing  waste  on  the  land,  and  from  selling  or  removing  the 
personal  property. 

In  the  case  of  Garrison  vs.  Hall  et  als.,  75  Ya.,  150,  decided 
January  13,  1881,  it  was  held :  A  party  claiming  title  to  land 
to  which  he  has  a  legal  title  to  one-third  and  an  equitable  title  to 
the  other  two-thirds,  may  go  into  equity  to  restrain  waste  upon 
the  land,  and  to  set  aside  a  conveyance  from  the  Board  of  Pub- 
lic Works  of  Virginia  to  a  purchaser  of  the  land,  the  same  hav- 
ing been  previously  legally  granted  by  a  valid  grant. 

Section  2775. 

In  the  case  of  Ross  vs.  Gill,  4  Call,  250,  decided  April,  1794, 
it  was  held :  In  an  action  for  waste  defendant  must  be  shown 
to  be  the  lessee,  and  that  can  only  be  made  to  appear  by  a 
valid  demise. 

In  the  case  of  Dejamette  vs.  Allen  and  Wife^  5  Grat.,  499, 
decided  January,  1849,  it  was  held :  Husband  during  the  life  of 
his  wife  takes  the  benefit  of  the  act  for  the  relief  of  insolvent 
debtors,  and  surrenders  and  conveys  to  the  sheriff  his  interest 
in  his  wife's  real  estate.  The  sheriff  sells  and  conveys  the  said 
interest  to  the  purchaser.  The  purchaser  is  a  tenant  for  life, 
and  may  be  sued  in  an  action  of  waste  by  the  husband  and 
wife. 


454  Citations  to  the  Code  of  Virginia. 

In  an  action  of  waste  by  husband  and  wife  against  the  alienee  of 
the  husband's  interest  in  the  wife's  land,  the  declaration  alleges 
that  the  reversion  in  fee  is  in  his  wife.  This  is,  in  effect,  to  al- 
lege that  the  reversion  in  fee  is  in  the  husband  and  wife ;  and  if 
it  is  not  sufficient  on  demurrer,  it  is  cured  by  the  statute  of  jeo- 
fails. 

The  verdict  finds  the  defendant  guilty  of  the  waste  as  charged 
in  the  declaration,  and  the  plaintiff  waives  a  recovery  of  the 
place  wasted,  the  verdict  proceeds  to  assess  the  damages  for 
particular  parts  of  the  waste  charged,  but  does  not  set  out  the 
locus  in  quo,  or  find  any  part  of  the  issue  for  the  defendant. 
The  verdict  is  sufficient. 

In  an  action  of  waste,  the  verdict  finds  for  the  plaintiff  and 
assesses  damages,  but  subject  to  the  opinion  of  the  court, 
whether  upon  certain  facts  stated  the  plaintiff  can  maintain  the 
action.     This  is  a  general  verdict. 

Section  2776. 

In  the  case  of  Graham  et  als.  vs.  Pierce,  19  Grat.,  28,  decided 
January  29,  1869,  it  was  held :  A  tenant  in  common  occupying 
and  using  the  common  property  separately,  will  be  responsible 
to  his  co-tenants  if  he  wilfully  or  by  gross  negligence  has  de- 
stroyed or  wasted  the  common  property. 

But  he  cannot  be  held  responsible  for  such  destruction  or 
waste  in  a  case  in  which  the  bill  does  not  charge  it. 


TITLE  XXXVIII. 


CHAPTEE  CXXYIL 

Section  2782. 

In  the  case  of  The  Farmers  Bank  vs.  The  Mutual  Assuratice 
Society,  etc.,  et  als.,  4  Leigh,  69,  decided  December,  1832,  it  was 
held :  In  general,  the  assignee  for  a  term  of  years  is  not  liable 
for  breaches  of  the  covenants  m  the  lease  before  the  assignment, 
but  if  the  assignee,  by  express  covenant  with  his  assignor,  bind 
himself  to  pay  the  debts  and  perform  all  the  covenants  in  the 
lease  contained  and  required  to  be  done  and  performed  on  the 
part  of  the  lessee,  such  a  covenant  not  only  binds  the  assignee 
to  fulfil  the  covenants  during  his  own  time,  but  makes  him  lia- 
ble for  breaches  before  his  time. 

Section  2783. 

In  the  case  of  Graham  vs.  Woodson,  2  Call,  249  (2d  ed.,  p. 
209),  decided  April  24,  1800.     A.  leased  to  B.  for  twenty  years, 


Citations  to  the  Code  of  Virginia.  455 

with  liberty  to  B.  of  surrendering  the  lease  at  any  time  before 
the  expiration  of  the  term  on  payment  of  five  shillings. 

A.  devised  the  rents  during  the  lease  to  his  five  daughters, 
and  the  fee-simple  to  his  son,  P.,  who  sold  to  B.,  who  surren- 
dered the  lease.  Held :  This  surrender  shall  not  disappoint  the 
daughters'  legacies,  but  B.  will  be  decreed  to  pay  the  rents. 

The  reference  to  15  Grat.,  213-221,  is  an  error. 

Section  2785. 

In  the  case  of  Crawford  vs.  Morris,  5  Grat.,  90  and  107,  de- 
cided July,  1848.  The  agreement  between  S.  and  M.  provided 
as  follows :  M.  is  to  get  the  house  at  the  price  therein  stated, 
for  one  year  after  his  present  year  expires,  and  is  to  have  the 
preference  each  succeeding  year  thereafter.  Held :  This  did 
not  create  a  tenancy  from  year  to  year,  and  so  entitle  the  tenant 
to  the  legal  notice  to  quit. 

In  the  case  of  Harruon  vs.  2£iddleton,  11  Grat.,  527,  decided 
July,  1854,  it  was  held :  An  agreement  under  seal  by  a  tenant 
that  he  will  surrender  possession  whenever  a  purchaser  from 
the  landlord  requires  it,  constitutes  him  a  tenant  at  will,  or  at 
sufferance ;  and  he  is  not  entitled  to  six  months'  notice  to  quit. 
If  a  tenant  claims  to  hold  adversely  to  his  landlord  he  is  not 
entitled  to  notice. 

Section  2787. 

In  the  case  of  Cooke  vs.  Wise,  3  H.  &  M.,  463,  decided  April, 
1809,  it  was  held,  p.  470  :  Interest  is  recoverable,  by  way  of 
damages,  in  an  action  of  debt  for  rent-arrear. 

In  the  case  of  Eppes's  Executors  vs.  Cole  and  Wife,  4  H.  &  M., 
161,  decided  October,  1809,  it  was  held:  Assumpsit  for  use  and 
occupation  of  land,  by  permission  and  assent  of  the  plaintiff,  on 
an  express  promise  to  pay  the  plaintiff  a  certain  sum,  or,  in 
general  terms,  to  pay  him  to  his  satisfaction,  for  such  use  and 
occupation,  lies  at  common  law,  independently  of  the  statute 
11  Geo.  L,  c.  19. 

In  the  case  of  Dovj  vs.  Adams'  Administrators,  5  Munf.,  21, 
decided  December  4, 1815,  it  was  held :  Though  interest  ought  not 
to  be  given  as  of  coiirse  in  actions  for  the  recovery  of  rent  in 
arrear,  it  may,  nevertheless,  be  given  under  circumstances  to  be 
judged  of  by  the  jury;  and  in  case  of  a  general  verdict  allowing 
interest,  it  shall  be  intended  that  sufficient  circumstances  existed 
to  justify  the  allowance  thereof.  But  if  the  jury  state  the  cir- 
cumstances in  a  special  verdict,  the  court  should  disallow 
the  interest,  if,  under  those  circumstances,  it  ought  not  to  be  al- 
lowed. 

Interest  on  rents  in  arrear  ought  not  to  be  allowed,  the  circum- 
stances being  that  there  always  were  effects  on  the  premises 


456  Citations  to  the  Code  of  Virginia. 

liable  to  distress,  sufficient  to  have  satisfied  the  rents,  which 
were  not  paid,  though  demanded  by  the  landlord. 

In  the  case  of  Mickie  vs.  Lawrence  {Executor  of  Wood),  5 
Rand.,  571,  decided  August,  1827,  it  was  held:  No  set  form  of 
words  is  necessary  to  constitute  a  lease,  and  a  contract  between 
two  persons  that  one  should  have,  during  the  life  of  the  other, 
land,  negroes,  etc.,  he  paying  therefor  a  stipulated  annual  sum, 
is  not  a  sale  but  a  rent. 

Interest  cannot  be  recovered  as  of  course  in  actions  for  the 
recovery  of  rent,  but  may  be  given  under  circumstances  to  be 
judged  of  by  the  jury. 

In  the  case  of  Briggs  vs.  Hall,  4  Leigh,  484,  decided  May, 
1833.  In  assumpsit  for  the  use  and  occupation  of  a  farm  for  a 
year,  it  appears  that  the  landlord  entered  on  a  meadow  parcel 
of  the  premises,  within  the  year,  mowed  and  carried  away  the 
hay,  \vithout  the  consent  and  against  the  will  of  the  tenant,  who, 
nevertheless,  continued  to  occupy  the  farm  during  the  residue 
of  the  year.  Held :  The  landlord,  by  such  disturbance  of  the 
tenant,  lost  the  benefit  of  the  entire  contract,  and  is  not  entitled 
to  recover  any  part  of  the  rent. 

In  the  case  of  Commonwealth  vs.  Micks  et  als.,  1  Grat.,  416, 
decided  March,  1845,  it  was  held:  Tenants  holding  property 
which  is  the  subject  of  controversy  in  a  pending  suit  are  bound 
to  pay  interest  upon  the  rents,  though  it  is  not  ascertained  who 
is  the  party  entitled  to  receive  theni. 

In  the  case  of  Brooks  vs.  Wilcox,  11  Grat.,  411,  decided  July, 
1854,  it  was  held:  A  landlord  having  distrained  for  rent  in 
arrear  reserved  in  salt  has  the  affidavit  and  warrant  of  distress 
returned  to  the  circuit  court ;  and  the  defendant  appears  there, 
and  a  jury  is  impaneled  to  ascertain  the  value  of  the  rent  in 
arrear,  which,  not  being  able  to  agree,  is  discharged,  and  the 
landlord  dismisses  the  case  in  that  court.  He  may  then  apply 
to  the  county  court  to  have  the  value  of  the  rent  ascertained, 
basing  his  appHcation  on  the  same  affidavit  and  warrant  of  dis-. 
tress.  If  the  officer  levying  the  distress  thinks  that  he  has  not 
taken  sufficient  effects,  he  may  make  a  second  levy. 

The  defendant  having  elected  to  have  the  value  of  the  rent 
reserved  ascertained  by  a  jury,  it  is  not  error  to  swear  them  to 
ascertain  the  rent  said  to  be  due. 

The  only  object  of  a  proceeding  before  a  jury  in  the  case  of 
a  distress  for  rent  is  to  ascertain  the  value  in  money  of  the  rent 
in  arrear.  It  is  not  necessary  for  the  landlord  to  prove  to  the 
jury  that  a  distress-waiTant  has  been  levied  for  rent  in  some- 
thing other  than  money,  and  that  it  is  due  and  in  arrear. 

The  jury  having  ascertained  the  value  of  the  rent  in  arrear, 
the  court  makes  an  order  directing  the  officer  to  sell  the  property 
distrained  as  is  directed  by  law,  and  after  satisfying  the  rent  due, 


Citations  to  the  Code  of  Virginia.  467 

"with  interest  and  cost,  to  pay  over  the  balance  to  the  tenant. 
This  is  substantially  in  accordance  with  the  statute. 

Under  the  act  of  March  2,  1827,  the  landlord  was  entitled  to 
interest  on  rent  in  arrear  from  the  time  it  was  due. 

In  the  case  of  Parrish  vs.  The  Commo)iwealth,  81  Va.,  1,  de- 
cided November  28,  1884,  it  was  held,  pp.  7  and  8 :  Where  land- 
owner contracts  with  one  to  crop  his  land  and  to  give  him  part 
of  the  crop  after  paying  all  advances,  and  the  crop  has  not  been 
divided,  such  cropper  is  not  a  tenant,  but  a  mere  employee,  and 
the  ownership  of  the  entire  crop  is  in  the  land-owner,  and  if 
■cropper  forcibly  or  against  consent  of  land-owner  takes  the 
crop  from  the  possession  of  the  latter,  such  taking  is  larceny, 
robbery,  or  other  offence,  according  to  the  circumstances  of  the 
case. 

Section  2791. 

In  the  case  of  Moshy  vs.  Leeds,  3  Call,  439  (2d  edition,  380), 
decided  November  5, 1803,  it  was  held:  Distress  for  rent  cannot 
be  made  of  the  demised  premises  (except  within  the  time  limited 
by  statute  after  the  removal) ;  therefore  an  attachment  served  on 
the  same  property  has  priority. 

In  the  case  of  Davis  ys.  Payyie^s  Administrator,  4  Rand.,  332, 
decided  June,  1826,  it  was  held :  The  property  of  a  third  per- 
son never  was  liable  to  distress  unless  it  were  found  upon  the 
premises,  and  even  where  it  is  found  there,  the  distress  is  taken 
away  by  the  act  of  1818. 

In  the  case  of  Jones  et  als.  vs.  Phelan  &  Collander,  20  Grat., 
229,  decided  January,  1871.  G.  is  a  tenant  of  a  house  and  lot 
leased  of  S.,  and  he  gives  a  deed  of  trust  on  part  of  the  per- 
sonal property  in  the  house  to  secure  a  debt  to  P.  which  is  re- 
corded. He  afterwards  gave  another  deed  of  trust  on  all  the 
property  in  the  house  to  secure  a  debt  to  J.  S.  distrains  for  a 
year's  rent  upon  the  property  embraced  in  the  deed  to  secure  P. 
By  consent  of  all  the  parties,  all  the  property  conveyed  in  the 
deeds  is  sold,  and  after  paying  the  rent  there  is  a  balance  left. 
Held :  S.  is  entitled  to  be  paid  first  his  year's  rent  out  of  the 
proceeds  of  the  whole  property  if  necessary ;  but  the  proceeds 
of  the  property  not  embraced  in  P.'s  deed,  is  to  be  applied  first 
to  pay  G. 

After  8.  is  satisfied,  P.  is  entitled  to  have  the  balance  of  the 
proceeds  of  the  property  embraced  in  the  deed  applied  to  pay 
pro  tanto  his  debt. 

In  the  case  of  City  of  Richmond  for,  etc.,  vs.  Duesberry  et 
als.,  27  Grat,  210,  decided  January,  1875.  N.  leased  of  D.  a 
house  for  one  year,  commencing  January  1,  and  ending  Decem- 
ber 31,  1871.  In  March,  M.,  without  the  assent  of  D.,  took  N.'s 
lease  and  purchased  his  furniture  on  the  leased  premises,  and 
having  borrowed  the  money  to  pay  for  it  from  C,  conveyed  it 


458  Citations  to  the  Code  of  Virginia. 

in  trust  to  secure  his  debt  to  C.  M.  paid  the  rent  to  D.,  and  at 
the  end  of  the  year  held  over,  and  in  March,  1872,  he,  without 
D.'s  assent,  turned  over  the  house  and  furniture  to  P.,  who  paid 
the  rent  to  D.  until  July  or  August.  In  the  latter  part  of  the 
year  P.  failed  to  pay  the  rent,  whereupon  D.  sued  out  a  warrant 
of  distress,  which  was  levied  upon  the  property  conveyed  to- 
secure  C.  Held  :  The  holding  over  by  M.  in  1872,  was  under  a 
new  lease,  and  the  lien  in  favor  of  C.  having  been  upon  it  when 
that  lease  commenced,  C.'s  lien  is  valid  against  D.'s  lien  for  the 
rent  of  1872.  See  Code  of  1860,  Chapter  138,  Sections  11 
and  12. 

In  the  case  of  Wades  vs.  Figgatt  et  als.,  75  Va.,  575,  decided 
September,  1881.  Real  estate  is  leased  to  a  firm  for  the  term 
of  three  years,  to  commence  on  the  1st  of  January,  1876 ;  the 
lessees  purchase  from  the  lessors,  and  take  possession  of  the 
furniture  on  the  leased  premises.  On  the  19th  day  of  June, 
1876,  before  the  rent  of  the  year  becomes  due,  one  of  the  firm 
executes  a  deed  of  trust  on  the  furniture  to  secure  to  the  lessors 
the  payment  of  two  certain  notes,  and  to  indemnify  the  endorser 
on  a  certain  other  note  given  for  the  furniture.  The  rent  for 
the  year  1876  was  paid.  The  rent  for  1877  was  assigned  to  a 
third  party,  who  levied  a  distress  warrant  upon  the  furniture  on 
the  leased  premises  for  that  year's  rent  which  was  in  the  arrear. 
The  endorser  of  the  note  aforesaid,  on  which  judgment  had 
been  obtained  against  the  maker  and  himself,  paid  off  the  said 
note,  and  filed  his  bill  against  the  assignee  of  the  note,  the 
trustee,  in  the  deed  of  trust  and  others,  claiming,  among  other 
things,  that  the  trust  deed  constituted  a  prior  lien  on  the  pro- 
perty to  the  rent  for  the  year  1877,  and  praying  an  injunction  to 
stop  the  sale  of  the  property,  levied  on  until  the  rights  of  the 
parties  could  be  determined,  and  for  the  appointment  of  the 
receiver,  which  was  awarded.     Held  : 

1.  That  the  lien  of  the  deed  of  trust  was  created  after  the  com- 
mencement of  the  tenancy  under  which  the  distress  was  made  ; 
that  the  tenancy  of  the  two  years  (1876  and  1877)  was  the  same. 

2.  That  the  payment  of  the  rent  for  the  year  1876  was  no 
discharge  of  the  prior  right  of  the  lessors  or  their  assignee  to 
one  year's  rent  within  the  meaning  of  the  statute. 

The  goods  carried  on  the  leased  premises  and  incumbered 
"after  the  commencement  of  the  tenancy,"  are  charged  with  a 
definite  portion  of  the  rent  under  the  tenancy  during  the  term, 
and  not  with  the  specific  rent  of  any  particular  year  or  period 
of  time.  "One  year's  rent"  and  "a  year's  rent,"  are  used  in 
the  statute  to  denote  the  amount  of  rent  to  be  distrained  for  in 
the  one  case,  and  to  be  paid  or  secured  in  the  other;  and  it 
matters  not  for  what  year  it  accrued,  or  whether  it  was  before  or 
after  the  creation  of  the  lien,  or  whether  or  not  other  rents  may 


^ 


Citations  to  the  Code  of  Virginia.  459 

have  accrued  after  the  Ken  was  created  and  had  been  paid  by 
the  tenants.  As  long  as  any  rent  arising  under  the  tenancy  re- 
mains unpaid  by  the  persons  liable  therefor,  as  soon  as  it  be- 
comes due  the  persons  entitled  to  it  may  distrain  the  goods  for 
an  amount  not  exceeding  the  rent  for  a  year. 

In  the  case  of  Upper  Appomattox  Co.  vs.  Hamilton  &  Man, 
83  Ya.,  319,  decided  May  12,  1887.  Tenant  under  lease  for  a 
term  containing  no  agreement  for  renewal  executed  trust  deed 
on  personalty  on  the  premises.  Afterwards  landlord  and  tenant 
agreed  on  a  renewal  different  in  terms  from  original  lease. 
Held :  Effect  of  renewal  was  a  new  tenancy  commencing  after 
execution  and  record  of  trust-deed,  which  had  priority  over 
lien  for  rent. 

Section  2792. 

The  reference  to  6  Leigh,  336,  is  an  error.  No  case  there 
affecting  this  point. 

In  the  case  of  Gr^eiger's  Administrators  vs.  IIarm,an,  3  Grat., 
130,  decided  July,  1846^  it  was  held :  The  landlord's  lien  for  a 
year's  rent  on  the  goods  and  chattels  of  his  tenant  does  not  ex- 
tend to  protect  them  from  being  taken  by  virtue  of  any  execu- 
tion, except  in  cases  where  the  said  goods  and  chattels  shall  be 
in,  or  upon  the  demised  premises. 

For  the  references  to  27  Grat^  210,  and  75  Va.,  575,  see  the 
cases  of  City  of  Richmond  vs.  l)uesberry,  and  Wades  vs.  Fig- 
gat  respectively,  cited  supra.  Section  2791. 

Section  2795. 
See  Brooks  vs.  Wilcox,  11  Grat.,  411,  supra.  Section  2787. 
See  Parrish  vs.  Commonwealth,,  81  Va.,  1,  ante.  Section  2787. 

Section  2796. 
In  the  case  of  Johnston  vs.  Hargrove,  81  Va.,  118,  decided 
December  3,  1885,  it  was  held :  By  an  ancient  rule  of  the 
common  law,  before  lessor  can  exercise  a  stipulated  right  of  re- 
entry for  breach  of  covenant  to  pay  rent,  he  must  make  an 
actual  demand  upon  the  tenant  for  the  payment  thereof ;  unless 
by  special  agreement  the  requirement  of  demand  has  been  dis- 
pensed with.  The  rules  as  respect  the  necessity  for  demand 
remain  unaltered  by  statute,  Code  1873,  Chapter  113. 

Section  2797. 
In  the  case  of  Leonard  vs.  Henderson,  23  Grat.,  331,  decided 
March,  1873.  The  saving  in  favor  of  infants,  married  woman, 
or  insane  persons  in  Section  36,  Chapter  135,  of  the  Code  of 
Virginia,  in  relation  to  actions  of  ejectment,  does  not  apply  to 
actions  of  ejectment  brought  by  the  lessee  to  recover  possession 
of  the  leased  premises,  which  had  been  recovered  by  the  land- 
lord under  Section  16,  Chapter  138,  of  the  Code. 


460  Citations  to  the  Code  of  Virginia. 

H.,  the  owner  of  a  ground  rent  in  fee  secured  upon  a  lot  of 
ground  in  fee  by  L.,  brought  ejectment  against  V.,  the  tenant  in 
possession,  to  recover  the  lot  for  the  failure  of  L.  to  pay  the 
rent,  and  there  was  a  judgment  by  default  in  favor  of  H.,  who 
proved  by  his  own  testimony  that  the  rent  was  due,  and  there 
was  no  sufficient  distress  upon  the  premises,  and  H.  was  put 
into  possession  of  the  premises.  At  this  time  L.  was  an  infant 
under  twenty-one  years  of  age.  After  one  year  from  the  time 
H.  was  put  into  possession,  but  within  five  years  after  H.  be- 
came of  age,  he  brought  ejectment  against  H.  to  recover  the  lot. 
Held :  L.  is  barred  by  the  statute.  Chapter  138,  Section  17,  and 
cannot  recover.  Though  L.  was  not  a  party  to  the  action  of 
H.,  yet  v.,  the  tenant  in  possession  was,  and  that  under  Section 
16,  Chapter  138,  is  sufficient ;  and  the  proof  by  H.  was  suf- 
cient. 

Section  2800. 

See  the  case  of  Johnston  vs.  Hargrove,  81  Va.,  118,  ante,  Sec- 
tion 2719. 

See  Leonard  vs.  Henderson,  23  Grat.,  331,  ante.  Section  2797. 

CHAPTEE  CXXVIII. 
CHAPTER  CXXIX. 


TITLE  XXXIX. 

CHAPTER   CXXX. 

In  the  case  of  8need  vs.  Smith,  1  P.  &  H,  46,  decided  January, 
1855.  A.  filed  a  bill  against  B.  to  enjoin  a  judgment  on  the 
ground  of  usury.  The  allegations  of  the  bill  are  denied  in  the 
answer  and  unsustained  by  proof.  Held:  Such  a  bill  should 
be  dismissed,  and  whatever  ground  there  may  be  on  the  face  of 
the  bill  and  answer  to  suspect  usury,  in  the  absence  of  proof 
relief  should  be  denied. 

In  the  case  of  Terry  vs.  Dickinson  et  als.,  5  Ya.  Law  Journal, 
393,  decided  June,  1881,  it  was  held :  A  bill  to  set  aside  a  judg- 
ment on  the  ground  of  usury  simply  says  the  debt  was  usurious, 
without  stating  the  usurious  interes'^fc  taken ;  the  defendant  denies 
the  charge  of  usury,  which  is  not  sustained  by  two  witnesses ; 
the  court  will  not  after  long  delay  set  aside  the  judgment  and 
grant  a  new  trial. 

In  the  case  of  McGuire  vs.  Parker's  Executor,  1  Wash.,  368, 
decided  at  the  fall  term,  1794,  it  was  held :  The  court  will  never 
presume  usury  unless  it  be  proved. 


Citations  to  the  Code  of  Virginia.  461 

Upon  a  contract  payable  in  Pennsylvania  currency,  reserving 
interest  generally,  if  a  decree  be  entered  by  consent  for  six  per 
cent.,  it  will  be  considered  as  a  Pennsylvania  contract,  and  not 
usurious.  Otherwise,  if  the  decree  were  entered  for  six  per  cent, 
in  consideration  of  indulgence  as  to  the  time  of  payment. 

In  the  case  of  Gtbaon  vs.  Fristoe  et  als.,  1  Call,  63  (2d  edition, 
54),  decided  November  8,  1797,  it  was  held:  An  agreement  by 
which  a  man  secures  to  himself,  directly  or  indirectly,  a  higher 
premium  than  legal  interest  for  the  loan  of  money  or  the  for- 
bearance of  a  debt  due,  is  usury. 

In  the  case  of  jPrice  et  als.  vs.  Campbell,  2  Call,  111  (2d  edi- 
tion, 92),  decided  November  15,  1799,  it  was  held:  In  order  to 
constitute  usury,  both  parties  must  be  consenting  to  the  unlaw- 
ful interest ;  that  is  to  say,  the  lender  to  ask  and  the  borrower 
to  give. 

There  must  be  proof  of  a  lending  and  borrowing  to  constitute 
usury.  Therefore,  if  a  bill  of  exchange  be  drawn  upon  an  ob- 
scure man  in  Scotland,  although  the  payee  may  expect  it  will 
be  protested,  yet,  if  there  was  no  agreement  between  him  and 
the  drawer  that  it  should  be  protested,  the  transaction  is  not 
usurious. 

In  the  case  of  Robertson  vs.  Cainpbell  &  W?ieeler,  2  Call,  421, 
(2d  edition,  354),  decided  October  24,  1800,  it  was  held :  An 
agreement  to  set  the  profits  of  the  mortgaged  subject  against  the 
interest  of  the  money  lent  is  usurious  if  they  exceed  the  legal 
rate  of  interest. 

In  the  case  of  Br'own  vs.  Brent,  1  H.  &  M.,  4,  decided  Sep- 
tember 22,  1806,  it  was  held  :  It  is  not  usurious  upon  a  settle- 
ments of  accounts  to  take  a  bond  or  note  for  the  balance  due,  in- 
cluding interest,  and  to  receive  interest  on  such  bond  or  note. 

In  the  case  of  Kenner  vs.  Hord,  2  H.  &  M.,  14,  decided  by 
the  superior  court  of  chancery  for  the  Richmond  district  during 
the  fall  vacation,  1807,  it  was  held:  A  bond  may  be  sold  for 
much  less  than  its  nominal  amount,  and  such  sale  will  be  en- 
forced in  a  court  of  equity,  as  well  as  of  law,  if  no  fraud  or  usury 
appear  in  the  transaction. 

In  the  case  of  Ha^nliris  Executor  vs.  Jlarriss,  2  H.  and  M., 
550,  decided  May  20,  1808.  A  bond  given  in  1782  in  the  pen- 
alty of  fifty  thousand  pounds,  conditioned  for  the  payment  of 
one  thousand  pounds,  or  such  further  sum  as  shall  be  equal  to 
the  said  one  thousand  pounds  in  1774,  that  is  to  say,  to  pur- 
chase "  as  much  laud  and  as  many  negroes  as  it  might  have  done 
at  that  time,"  was  held  not  to  be  an  usurious  contract. 

In  the  case  of  Pollard  vs.  Baylor's  Devisees,  4  H.  &  M.,  223, 
decided  October,  1809,  it  was  held :  J.  B.  being  indebted  to 
certain  British  merchants,  conveyed  a  certain  tract  of  land  and 
sundry  slaves,  in  trust,  to  secure  the  payment  of  the  debt,  in 


462  Citations  to  the  Code  of  Virginia. 

three  equal  annual  instalments,  with  interest  from  the  date  of 
the  deed  of  trust ;  the  payments  to  be  made  in  tobacco,  to  be 
delivered  at,  and  addressed  to  them  at  London,  at  which  thej 
were  to  draw  the  usual  and  accustomed  mercantile  commission 
of  twenty-one  shillings  sterling  for  each  hogshead  actually 
shipped ;  and  it  was  further  provided,  in  case  of  non-shipment 
of  the  tobacco,  a  further  sum,  equivalent  to,  and  in  lieu  of  the 
usual  mercantile  commission  thereon,  at  the  rate  of  twenfcy-one 
shillings  sterling  per  hogshead,  estimating  each  hogshead  to  be 
worth  ten  pounds  sterling,  was  to  be  added  to  each  payment. 
Held :  That  the  transaction  was  usurious,  and  the  deed  was 
void. 

In  the  case  of  Marks  vs.  Morris,  4  H.  &  M.,  463,  decided  by 
the  superior  court  of  chancery  for  Richmond  district,  October, 
1809,  it  was  held :  In  cases  of  usury,  the  borrower  filing  his 
bill  in  equity  is  entitled  to  relief,  not  against  the  contract  en- 
tirely, but  to  the  amount  of  all  but  the  principal  money,  the 
lender  being  entitled  to  receive  his  principal  without  any  in- 
terest. 

In  such  cases,  though  relief  be  given  against  the  interest,  the 
usurious  assurances  remain  as  a  security  for  the  principal,  and 
the  court  will  direct  them  to  be  enforced  to  that  extent,  if  it  be 
not  paid  to  a  given  day. 

In  the  case  of  Skipwith  vs.  Gibson  c&  Jefferson,  4  H.  &  M., 
490,  decided  by  the  superior  court  of  chancery  for  Richmond, 
February,  1810,  it  was  held :  It  is  not  usury  to  sell  bank  stock 
at  a  very  high  price ;  since,  to  constitute  usury,  there  must  be  a 
treaty  for  the  loan  or  forbearance  of  money. 

In  the  case  of  Lane  vs.  Ellzey,  4  H.  &.  M.,  504,  decided  by 
the  superior  court  of  chancery  for  Richmond,  February,  1810, 
it  was  held:  A  defendant  may  plead  to  a  scire  facias  brought  to 
revive  a  decree  which  was  obtained  against  him  by  default,  that 
the  original  contract  was  usurious. 

In  the  case  of  Hansborough  vs.  Baylor,  2  Munf.,  36,  decided 
March  12,  1811,  it  was  held:  If  a  bond  be  given  without  any 
consideration  but  to  be  used  as  an  article  of  traffic  to  raise 
money,  the  bona  fide  purchaser  (though  at  a  large  discount)  of 
such  bond,  without  notice  of  the  purpose  for  which  it  was  exe- 
cuted, is  entitled  to  recover  the  full  amount.  A  fair  purchase  of 
the  bond  at  any  discount  is  not  usurious. 

In  the  case  of  Watkins  vs.  Taylor  &  Mewhurn,  2  Munf.,  424, 
decided  October  14,  1811,  it  was  held:  T.  being  indebted  to  H. 
in  the  sum  of  one  thousand  two  hundred  pounds,  payable  by 
four  equal  instalments  in  little  more  than  three  years,  an  agree- 
ment took  place  between  T.  and  W.,  that  W.,  in  consideration 
of  three  hundred  pounds  cash  paid  him  by  T.,  should  exonerate 
T.  from  his  debt  to  H.     This  agreement  is  usurious  and  void, 


Citations  to  the  Code  of  Virginia.  463 

notwithstanding  W.  might  have  reaped  advantage  from  it  by 
buying  the  bonds  of  H.  at  a  discount,  qr  by  selling  him  tobacco 
at  a  price. 

In  the  case  of  Boss  vs.  Norvell,  3  Munf.,  170,  decided  March 
18,  1812,  it  was  held:  A  continuance  ought  not  to  be  granted 
at  law  on  the  ground  that  the  party  a  few  days  before  that  ap- 
pointed for  trial  files  a  bill  in  equity  for  a  discovery  of  usury 
as  auxiliary  to  his  defence  at  law,  unless  he  make  affidavit  that 
the  usury  therein  charged  had  recently  come  to  his  knowledge. 

In  the  case  of  Ellzey  vs.  Lane's  Executrix,  4  Munf.,  ^^,  de- 
cided February  22,  1813,  it  was  held :  The  plea  of  the  "  statute 
against  usury"  ought  to  be  received  in  a  court  of  equity  at  any 
time  before  the  decree  is  final,  if  there  be  strong  reasons  from 
the  statement  in  the  bill  for  believing  that  the  matter  of  such 
plea  may  be  true. 

If  the  party  tendering  such  plea  has  been  improvidently  al- 
lowed to  file  a  bill  of  review,  which  has  therefore  been  dismissed 
at  his  costs,  it  is  unreasonable  to  require  him  to  pay  those  costs 
in  a  limited  time  as  the  condition  of  receiving  his  plea. 

In  the  case  of  Fox  vs.  Taliaferro,  4  Munf.,  243,  decided  Feb- 
ruary 13,  1812,  it  was  held :  If  a  bond  for  usurious  interest  be 
taken  in  consideration  of  forbearance  to  bring  suit  on  a  previous 
bond,  which  in  its  origin  was  free  from  objection,  it  is  compe- 
tent for  the  obligor  to  obtain  relief  in  equity  against  the  obligee, 
by  having  such  usurious  bond  cancelled  or  credit  given  him  for 
the  amount  of  the  principal  and  interest  due  thereon  against 
the  original  bond.  And  this  right  is  not  lost  by  the  assignment 
of  either  of  the  bonds. 

On  a  bill  of  injunction  against  the  assignee  in  such  case,  the 
obligee,  being  also  a  defendant,  the  court  ought  not  to  decree 
that  the  injunction  be  dissolved  and  the  bill  dismissed  as  to  the 
assignee,  and  that  the  obligee  pay  to  the  complainant  the  amount 
of  such  usurious  bond;  but  should  appoint  a  reasonable  time 
for  the  obligee  to  produce  to  the  complainant  the  bond  for  the 
usiarious  interest,  or  a  satisfactory  acquittance  therefor ;  and  in 
that  event  should  dissolve  the  injunction,  or  (if  he  does  not 
produce  such  bond  or  acquittance)  should  make  it  perpetual  as 
to  so  much ;  and,  in  the  last  event,  a  further  decree  should  be 
made,  that  the  obligee  pay  to  the  assignee  the  sum  for  which  the 
injunction  is  made  perpetual.  And  if  a  decree  dismissing  the 
bill  be  reversed,  and  the  injunction  ordered  to  be  reinstated, 
the  court  reversing  such  decree  should  moreover  direct  that,  if 
it  shall  appear  that  the  whole  amount  of  the  judgment  has  been 
coerced  from  the  complainant  by  the  assignee,  such  further  de- 
cree shall  not  be  entered  in  favor  of  the  assignee,  but  of  the 
complainant. 

In  the  case  of  B^dl  vs.  Douglas  {Administrator  of  Turnbull), 


464  Citations  to  the  Code  op  Vibginia. 

4  Munf.,  303,  decided  March  21,  1814,  it  was  held:  A  contract 
for  the  sale  of  six  thousand  dollars  United  States  eight  per  cent, 
stock,  to  be  delivered  and  regularly  transferred  on  a  future 
day,  for  six  thousand  dollars  current  money  in  hand  paid  is 
not  usurious. 

In  such  case,  if  the  certificate  of  stock  be  not  delivered  and 
transferred  according  to  contract,  the  proper  measure  of  com- 
pensation is  not  the  nominal  amount  of  the  stock,  with  eight  per 
cent,  interest  from  the  day  when  it  should  have  been  delivered, 
but  its  true  value  on  that  day  (including  the  interest  then  due), 
with  lawful  interest  on  such  value  until  payment. 

In  the  case  of  West  vs.  Welches,  5  Munf.,  187,  decided  Octo- 
ber 30,  1816,  it  was  held  :  That  slaves  sold  on  a  credit  for  more 
than  a  sum  which  the  seller  had  previously  offered  to  take  for 
them  in  cash,  with  interest  thereon  during  the  term  of  credit, 
and  that  the  seller  was  accustomed  to  loan  money  on  usurious 
interest,  is  not  sufl&cient  evidence  that  such  sale  was  intended 
as  a  cover  for  usury,  there  being  no  proof  that  a  loan  of  money 
was  intended  by  the  parties. 

In  the  case  of  Pollard  vs.  Baylor  et  als.,  6  Munf.,  433,  de- 
cided November  27,  1819,  it  was  held :  The  question  whether 
a  contract  is  usurious  or  not  is  to  be  decided  with  reference  to 
the  time  when  it  was  entered  into  ;  for  a  contract  legal  at  such 
time  cannot  be  made  usurious  by  subsequent  events. 

In  the  case  of  Greenhoio's  Administratrix  and  Heirs  vs.  Har- 
ris et  als.,  6  Munf.,  472,  decided  January  25,  1820,  it  was  held: 
A  sale  of  bank  stock  at  whatever  price  is  not  usurious,  unless 
the  object  be  to  borrow  money  at  more  than  lawful  interest,  and 
hot  to  purchase  stock,  and  the  price  of  the  stock  be  graduated 
as  a  device  to  effect  that  object;  or  there  be  a  combination  be- 
tween the  seller  of  the  stock  on  credit  and  a  person  to  whom 
the  buyer  sells  it  for  cash ;  in  either  of  which  cases  the  transac- 
tion becomes  usurious. 

If  it  be  alleged  in  a  bill  of  injunction  to  prevent  a  sale  ander 
certain  deeds  of  trust,  that  a  previous  loan  was  usuriously  made 
upon  a  note  at  twelve  months,  secured  by  another  deed,  and 
that  one  of  the  deeds  aforesaid  was  made  only  as  a  kind  of  in- 
dulgence on  that  note,  and  to  close  some  other  transactions  of 
the  like  nature,  and  the  defendant,  by  his  answer,  deny  all 
charges  of  usury,  and  aver  that  he  made  no  loan,  but  bought 
the  note  fairly  in  the  market,  without  knowing  the  considera- 
tion for  which  it  was  given  (setting  forth  at  what  price),  upon 
condition  that  the  holder  would  get  it  secured,  which  was  done ; 
that  it  had  long  since  been  discharged,  and  had  no  connection 
with  the  deeds  of  trust  enjoined;  it  seems  that  the  injunction, 
being  unsupported  by  evidence  on  the  part  of  the  plaintiff, 
ought  to  be  dissolved,  notwithstanding  the  defendant  evades 


Citations  to  the  Code  of  Virginia.  465 

disclosing  the  name  of  the  holder  of  whom  he  bought  the  note 
at  a  large  discount. 

A  charge  of  usury  being  explicitly  denied  by  the  defendant's 
answer,  the  plaintiff  has  not  a  right  to  an  order  requiring  him 
to  produce  his  books  and  papers  for  the  purpose  of  establishing 
such  charge. 

In  the  case  of  Douglas  vs.  McChemey,  2  Rand.,  109,  decided 
December  10,  1823,  it  was  held :  A  tacit  understanding  between 
borrower  and  lender  founded  on  a  known  practice  of  the  latter, 
to  lend  money  at  legal  interest,  if  the  borrower  purchased  of 
him  a  horse  at  an  unreasonable  price,  is  a  shift  to  evade  the 
statute  against  usury.  When  a  court  of  chancery  has  doubt, 
•whether  the  sale  of  the  horse  or  other  property  is  really  in- 
tended as  a  shift  to  evade  the  statute  against  usur}^  it  ought  to 
direct  an  issue  to  be  tried  upon  viva  voce  testimony,  if  to 
be  had. 

In  the  case  of  Young  vs.  Scott,  etc.,  4  Rand.,  415,  decided 
August,  1826,  it  was  held :  In  all  cases  where  a  party  applies  to 
a  court  of  equity  for  relief  against  an  usurious  contract,  whether 
he  alleges  in  his  bill  that  he  is  able  to  prove  the  usury  without 
the  defendant's  confession  or  not,  he  can  only  be  relieved  upon 
payment  of  principal,  without  interest,  under  Section  3,  of  our 
act  of  Assembly.     Decided  by  two  judges  out  of  three. 

In  the  case  of  Striblings  vs.  The  Bank  of  the  Yalley,  5  Rand., 
132,  decided  May,  1827,  it  was  held :  Taking  interest  in  advance 
upon  the  whole  amount  of  a  note  discounted  at  bank  is  lawful. 

In  the  case  of  Whitworth  cfc  Yancey  vs.  Adams,  5  Rand.,  333, 
decided  June,  1827,  it  was  held :  A  note  is  made  and  endorsed 
for  the  accommodation  of  the  payee,  and  afterwards  put  into 
the  hands  of  a  broker  by  the  payee  to  be  sold  in  the  market. 
It  is  purchased  of  the  broker  by  a  third  person,  who  has  no 
knowledge  that  it  is  accommodation  paper,  or  for  whose  benefit 
it  is  sold.     This  transaction  is  not  usurious. 

An  intermediate  endorsement  of  a  valid  note  for  an  usurious 
consideration,  as  between  endorser  and  endorsee^  will  not  vitiate 
tlie  note  in  the  hands  of  a  subsequent  hona  fide  holder  without 
notice  of  such  usury. 

A  note  valid  in  its  inception  is  endorsed  afterwards  by  a  party 
to  whom  it  has  regularly  come  to  a  third  person,  at  a  greater 
discount  than  legal  interest.     Such  transaction  is  usurious. 

In  the  case  of  Lane's  Executrix  vs.  Ellzey,  6  Rand.,  661,  de- 
cided December,  1828,  it  was  held  ;  If  to  a  bill  brought  to  fore- 
close a  mortgage  the  defendant  pleads  usury,  and  the  bill  itself 
on  its  face,  and  the  documents  filed  with  it  present  a  case  of 
usury,  such  as  is  pleaded,  it  is  not  necessary  for  the  defendant 
to  take  depositions  to  support  his  plea;  his  adversary's  bill  sup- 
ports his  plea. 


466  Citations  to  the  Code  of  Virginia. 

In  the  case  of  llolloway  {Administrator)  vs.  Bruce,  1  Va. 
(Gilmer),  42,  decided  Juue  5,  1820,  it  was  held :  Negotiable  notes 
made  by  H.  k  H.,  endorsed  by  A.  for  the  accommodation  of  H. 
<fe  H.,  to  be  sold  in  market,  purchased  by  B.  from  a  broker  who 
sells  them  for  H.  &  H.  at  a  greater  discount  than  six  per  cent., 
are  not  usurious  in  the  hands  of  B.  without  proof  that  B.  knew 
the  facts. 

In  the  case  of  Martin  vsf  Lindsay's  Administrators  et  als.,  1 
Leigh,  499,  decided  November,  1829,  it  was  held :  M.  borrows 
money  of  L.  on  usury,  and  by  deed  of  tnist  convej^s  land  to  a 
trustee,  with  power  to  sell  the  subject  when  required  after  debt 
should  fall  due  and  raise  money  to  pay  it.  The  lender  dies. 
His  administrators  require  trustee  to  sell  trust  subject ;  the  bor- 
rower exhibits  a  bill  in  chancery,  charging  the  usury,  requiring 
defendants  to  answer  the  charge,  insisting  that  the  deed  of  trust 
is  null  and  void,  and  praying  injunction  to  restrain  trustee  from 
selling.  The  administrators  of  the  lender  and  the  trustee  dis- 
claim all  knowledge  of  the  usury,  but  the  usury  is  proved  by 
one  witness.  Held :  That  in  such  a  case  the  court  of  chancery 
should  enjoin  the  trustee  from  selling  the  trust  subject  till  the 
creditors  claiming  under  it  should  establish  its  legal  vaUdity  in 
some  proper  forum  where  the  debtor  may  have  an  opportunity 
to  contest  it. 

In  the  case  of  Toole  vs.  Stephen,  4  Leigh,  581,  decided  Novem- 
ber, 1833,  T.  and  N.  being  indebted  to  the  F.  and  M.  Bank,  and 
the  bank  having  recovered  judgments  against  them  for  the  debts, 
and  the  debtors  then  applying  to  the  bank  for  indulgence,  the 
bank  agrees  to  give  them  a  long  indulgence  upon  their  agreeing 
to  give  real  security  for  the  debt,  and,  moreover,  to  pay  the  attor- 
ney of  the  bank  all  the  costs  of  the  suits,  and  the  commission 
which  the  bank  had  agreed  to  pay  him  for  collecting  and  secur- 
ing the  debt ;  the  debtors  give  real  security  for  the  debt,  and  one 
of  them  pays  the  costs  and  part  of  the  commission  to  the  attor- 
ney, and  his  executor  gives  his  attorney  his  note  for  the  balance 
of  the  commission,  the  attorney  having  full  notice  of  the  terms 
of  the  agreement  between  the  bank  and  the  debtors.  Held : 
The  agreement  between  the  bank  and  the  debtors,  and  there- 
fore the  note  for  the  commission  to  the  attorney  were  usurious. 
Decree  between  co-defendants  refused  under  the  particular  cir- 
cumstances of  the  case. 

In  the  case  of  Crump  vs.  Nicholas,  5  Leigh,  251,  decided 
April,  1834.  The  Farmers  Bank  of  Virginia  discounted  a  note 
for  six  thousand  dollars,  payable  on  its  face  sixty  days  after  date, 
for  accommodation  of  the  maker;  it  was  understood  that  this 
accommodation  would  be  continued  indefinitely,  till  it  should 
suit  the  interest  or  convenience  of  the  bank,  or  of  the  party  to 
discontinue  it ;  the  bank  reserving  a  right  to  discontinue  it  at 


Citations  to  the  Code  of  Virginia.  467 

its  own  discretion  or  pleasure,  and  that  party  also  having  a 
right  to  discontinue  it  at  pleasure,  and  that  for  the  purpose 
of  so  continuing  it,  the  note  should  be  renewed  from  time  to 
time ;  the  accommodation  was,  in  fact,  continued  upon  such 
renewed  notes  from  the  21st  April,  1825,  to  the  4th  May, 
1826  ;  the  bank  in  discounting  the  first  note  deducted  and  re- 
tained to  itself  the  interest  for  sixty-four  days,  i.  e.,  for  the  time 
the  note  had  to  run,  including  the  days  of  grace,  counting  the 
interest  from  the  day  of  the  date  to  the  last  day  of  grace,  both 
inclusive ;  and  in  discounting  the  second  note,  made  on  the  last 
day  of  grace  of  the  first,  deducted  and  retained  to  itself  the  in- 
terest for  sixty -four  days,  counting  from  the  day  of  the  date  of  the 
second  and  last  day  of  grace  of  the  first  note  to  the  last  day  of 
grace  on  the  second  note,  both  inclusive,  and  so  on  upon  each 
renewed  note  successively  to  the  end  of  the  transaction,  so  that 
the  bank,  in  fact,  received  double  interest  for  each  sixty-fourth 
day,  and  this  was  in  conformity  with  the  known  usage  of  the 
Farmers  Bank  and  of  all  the  banks  of  Virginia.  Held:  The 
transaction  is  nomse  usurious. 

In  the  case  of  Campbell  vs.  Shields,  6  Leigh,  517,  decided 
July,  1835.  A  debtor  owing  a  debt  presently  due,  agrees  to  give 
the  creditor  his  bond  for  it,  payable  at  a  future  day,  and  to  add 
to  the  debt,  and  insert  in  the  bond  a  sum  equal  to  5  per  cent, 
on  the  debt,  to  cover  commission  which  the  creditor  might  be 
compelled  to  pay  an  agent  for  collection ;  and  the  bond  is  given, 
accordingly,  for  the  aggregate,  including  the  commission,  with  a 
verbal  agreement  that  if  the  debtor  should  pay  the  debt  punc- 
tually, he  should  be  exempted  from  the  payment  of  the  sum  in- 
serted in  the  bond  for  commission  for  collection  in  debt  on  the 
bond  and  issue  joined  on  the  plea  of  usury.     Held: 

1.  Parol  evidence  is  admissible  to  prove  the  verbal  agreement 
as  to  the  sum  allowed  for  commission. 

2.  The  contract  is  not  usurious,  since  the  debtor  might  by 
punctual  payment  of  the  debt  relieve  himself  from  the  payment 
of  the  sum  be  contracted  to  pay  for  commission. 

3.  The  creditor  stipulating  that  the  debtor  should  pay  the 
commission  which  would  be  incurred  in  the  collection  in  default 
of  piiuctual  payment,  if  made  in  good  faith  to  cover  such  com- 
mission, and  not  as  a  device  to  evade  the  statute  of  usury,  was 
in  point  of  law  not  usurious,  and  the  court  ought  so  to  direct 
the  jury,  leaving  to  tlie  jury  the  question  of  fact,  whether  the 
contract  for  the  commission  was  made  in  good  faith  or  was  an 
evasion  of  the  statute. 

In  the  case  of  The  Bank  of  the  Yalley  vs.  Strihlings^s  Execu- 
tor, 7  Leigh,  26,  decided  January,  1836.  A  proposition  is  made 
by  S.  to  the  directors  of  a  bank  that  he  would  purchase  one 
hundred  shares  of  the  stock  of  the  bank  (of  one  hundred  dollars 


468  Citations  to  the  Code  of  Virginia. 

each)  at  par,  and  that  the  bank  should  discount  for  him  a  note 
of  eight  thousand  dollars,  on  a  pledge  of  the  stock  at  eighty  dol- 
lars the  share,  upon  the  faith  of  the  expectation  that  if  the  pro- 
position should  be  acceded  to  the  bank  would  discount  for  him 
another  note  of  two  thousand  dollars  on  the  personal  security  of 
endorsers,  so  as  to  make  up  the  sum  of  ten  thousand  dollars, 
which,  he  said,  he  was  desirous  to  raise  for  his  present  exigen- 
cies, and  upon  condition  that  the  bank  should  not  call  upon  him 
for  the  money  for  eighteen  months,  to  which  the  directors  of  the 
bank  answer,  that  they  will  sell  him  one  hundred  shares  of  stock  at 
par,  for  the  price  whereof  they  will  receive  and  discount  his  note 
for  ten  thousand  dollars,  secured  not  by  a  pledge  of  the  stock,  but 
by  other  persons  joining  him  in  the  note  as  makers  and  as 
endorsers ;  the  note  to  be  regularly  renewed  every  sixty  days,  and 
the  discounts  paid  according  to  the  custom  of  the  bank  for  and 
during  the  term  of  eighteen  months,  and  also  that  S.  should 
have  a  loan  of  two  thousand  five  hundred  dollars  for  the  same 
term  of  eighteen  months  on  the  same  terms,  and  to  these  terms 
of  the  bank,  S.  assents,  and  the  notes  are  accordingly  made  and 
discounted,  S.  and  the  directors  both  knowing  that  the  utmost 
value  of  the  stock  in  the  market  at  the  time  was  but  eighty  dol- 
lars a  share.  Held:  This  was  a  sale  of  stock  at  an  exorbi- 
tant price,  coupled  with  a  loan  of  money  arising  out  of  a  pro- 
position to  boiTOw  money,  the  sale  and  loan  one  entire  contract, 
inseparably  connected  with  one  another,  and  the  one  made  de- 
pendent on  the  other,  and  the  transaction  and  S.'s  notes  made 
and  discounted  by  the  bank  in  pursuance  of  the  agreement, 
were  usurious. 

In  the  case  of  Steptoe^s  Administrators  vs.  Harvey's  Execu- 
tors, 7  Leigh,  501,  decided  May,  1836.  A  contract  to  take  for 
the  loan  of  one  hundred  and  forty-two  shares  of  bank  stock  for 
a  year  thirty  additional  shares,  is  not  void  under  the  statute 
against  usury,  for  the  one  hundred  and  seventy-two  shares  to 
be  returned  may  not  at  the  time  of  returning  them  be  of  any 
greater  value  than  the  one  hundred  and  forty-two  shares  re- 
ceived at  the  time  of  receiving  them,  with  the  dividends  or  in- 
terest added. 

If  covenant  on  an  obligation  to  pay  one  hundred  and  seventy- 
two  shares  of  bank  stock  twelve  months  after  date,  plea  alleges 
an  agreement  to  lend  one  hundred  and  forty-two  shares  of  the 
value  of  one  hundred  dollars  each,  to  be  returned  twelve 
months  after  date  with  more  than  the  value  of  the  dividends 
which  would  accrue  thereon,  and  though  payable  twelve 
months  after  date,  with  more  than  the  value  of  six  dollars  for 
every  one  hundred  dollars  of  the  value  of  the  stock  so  loaned, 
to-wit :  with  thirty  shares  of  the  said  stock  in  addition  to  the 
one  hundred  and  forty-two  lent,  which  thirty  shares  were,  at 


Citations  to  the  Code  of  Virginia.  469 

the  date  of  the  agreement,  of  the  value  of  one  hundred  dollars 
each,  and  that  the  obligation  was  executed  in  pursuance  of  this 
agreement.  Held:  The  agreement  set  forth  is  not  unlawful, 
and  there  being  no  allegation  that  the  transaction  was  a  shift 
or  device  to  evade  the  statute  against  usury,  the  plea  presents 
no  bar  to  the  action,  and  was  properly  rejected. 

In  the  case  of  State  Bank  of  North,  Carolina  vs.  Cowan,  etc., 
8  Leigh,  238,  decided  April,  1837.  It  is  settled  in  Virginia  that 
the  taking  of  the  discount  in  advance,  upon  discounting  a  note 
at  bank,  is  not  usurious,  and  that  including  the  day  of  pay- 
ment of  the  first  note  in  the  second,  whereby  the  bank  receives 
under  each  note  interest  for  the  same  day,  is  not  usury. 

The  State  Bank  of  North  Carolina  discounted  a  note  made 
by  the  defendants  in  renewal,  in  which  other  notes  were  after- 
wards from  time  to  time  made  and  discounted ;  and  it  was  found 
by  a  special  verdict  that  the  bank  was  in  the  habit  of  using  in 
its  calculations  Rowlett's  table  of  interest,  which  considers 
three  hundred  and  sixty  days  as  a  year  instead  of  three  hun- 
dred and  sixty -five,  the  effect  of  which  is  to  make  the  interest 
for  every  fraction  of  a  year  somewhat  more  than  at  the  rate  of  6 
per  cent,  per  annum.  Held :  This  mode  of  calculating  interest 
does  not  make  the  transaction  usurious. 

At  a  time  when  the  State  Bank  of  North  Carolina  had  sus- 
pended specie  payments,  the  defendant  offered  to  the  bank  a 
note  for  discount,  accompanied  by  an  offer,  in  case  his  note 
should  be  discounted,  to  exchange  an  equal  amount  of  Northern 
funds  for  North  Carolina  bank  notes.  A  bill  was  accordingly 
drawn  upon  a  firm  in  Virginia  at  ninety  days,  and  the  same  be- 
ing accepted,  the  bill  and  note  were  both  discounted,  with  a 
farther  bill  annexed  to  the  note,  that  it  should  be  paid  in  Vir- 
ginia or  other  Northern  bank  notes.  The  bank  paid  for  the  bill 
and  note,  in  its  own  note  in  part,  and  in  part  in  notes  of  other 
banks  of  North  Carolina,  all  of  which  were  at  the  time  under 
par  in  Ealeigh,  at  from  3^  to  4^  per  cent.  At  the  time  of  the 
discount,  suits  were  pending  against  the  bank  upon  its  notes, 
to  coerce  payment  of  tltem.  The  notes  received  by  the  defend- 
ant were,  in  the  presence  of  the  president  and  cashier  of  the 
bank,  in  their  banking-house,  handed  over  to  the  acceptor  to 
meet  his  acceptance  with  them,  and  then  pay  the  balance  to  the 
defendant,  the  president  and  the  cashier  knowing  the  loss  to 
which  the  defendant  would  be  subjected.  The  notes  were  sold 
in  Virginia  at  a  loss  from  2^  to  3j^  per  cent.,  and  the  bill  paid 
at  maturity  in  Virginia  or  United  States  bank  notes.  These 
notes  were  at  par  at  the  time  of  the  discount,  and  the  president 
and  directors  of  the  North  Carolina  bank  knew  at  the  time  that 
their  notes  w^re  not  of  equal  value.  Held:  Notwithstanding, 
the  transaction  is  not  usurious. 


470  Citations  to  the  Code  of  Vieginia. 

In  the  case  of  Smith  vs.  Nichols,  etc.^  8  Leigh,  330,  decided 
April,  1837.  Where,  upon  a  loan  of  money,  the  lender,  besides- 
his  principal,  contracts  to  receive  in  lieu  of  interest  something 
which  may  be  worth  more  than  six  per  cent,  per  annum,  though 
it  may,  perhaps,  prove  to  be  worth  less,  as  the  dividends  on 
bank  stock,  the  contract  is  usurious. 

A  debtor,  owing  a  certain' number  of  shares  of  bank  stock, 
agrees  with  his  oreditor  to  pay  him,  at  a  future  day,  the  market- 
price  of  the  stock  on  that  day,  of  one  hundred  and  fifty  dollars 
per  share,  at  the  creditor's  option,  with  the  dividends.  Held : 
The  contract  is  usurious. 

In  the  case  of  Long's  Executor  vs.  Israel^  9  Leigh,  556,  de- 
cided December,  1838.  B.  represents  to  A.  that  he  has  been 
desirous  of  purchasing  C.'s  land,  but  had  not  done  so  from  in- 
ability to  advance  funds  as  speedily  as  C.  required,  and  that  he 
wishes  A.  to  buy  the  land  and  let  him  have  it.  "Whereupon  it 
is  agreed  that  A.  will  buy  the  land  as  cheap  as  he  can,  and  that 
B.  will  pay  him  nine  hundred  dollars  for  it.  A.  makes  the  pur- 
chase at  the  price  of  seven  hundred  and  fifty  dollars,  and  the 
land  is  conveyed  to  B.  Held :  The  transaction  between  A.  and 
B.  is  free  from  objection  on  the  ground  of  usury. 

In  the  case  of  Campbell  vs.  Patterson,  11  Leigh,  117,  decided 
April,  1840.  A  bond  is  given  to  close  a  series  of  transactions 
between  the  obligee  and  the  obligor,  consisting  of  loans  on  one 
side  and  payments  from  time  to  time  on  the  other,  and  when  the 
bond  is  executed  all  the  written  evidences  of  the  previous  trans- 
actions are  surrendered  to  the  obligor;  after  the  death  of  the 
obligee,  the  obligor  files  a  bill  in  equity  against  his  adminis- 
trator, alleging  usury  in  the  bond,  and  setting  forth  the  rate  of 
interest  reserved,  but  not  the  amount  of  money  advanced,  of 
which  a  discovery  is  called  for  from  the  administrator,  who 
answers  that  he  has  no  information  enabling  him  to  make  such 
discovery ;  this  court  is  of  the  opinion  that  the  transactions  were, 
in  fact,  usurious,  and  that  the  bond,  though  containing  no  usuri- 
ous interest  in  it,  yet,  having  been  given  for  money  loaned  on 
usury,  is  within  the  statute  and  void  as  a  security  for  money. 
Held:  Nevertheless,  under  the  circumstances  of  this  case,  the 
bond  should  be  received  as  evidence  of  the  amount  advanced. 

In  the  case  of  Reynolds  et  als.  vs.  Carter  [Administrator)  etc., 
12  Leigh,  166,  decided  April,  1841.  J.  advances  two  hundred 
dollars  to  K.,  and  K.  puts  a  slave  of  the  yearly  value  of  fifty 
dollars  into  J.'s  possession,  upon  an  agreement  that  J.  shall 
hold  the  slave  and  take  the  profits  for  interest  on  the  money 
till  R.  shall  redeem  the  pawn  by  paying  the  principal  sum  of  two 
hundred  dollars.  J.,  the  pawnee,  holds  the  slave  for  two  years 
and  dies ;  and  then  his  administrator  takes  a  bond  with  sureties 
from  R.,  the  pawnee,  for  the  principal  sum  of  two  hundred  dol- 


Citations  to  the  Code  of  Virginia.  471 

lars  advanced  bj  his  intestate,  and  restores  the  slave  to  the 
pawner.     Held : 

1.  That  the  contract  between  J.  and  R.  was  usurious  and  void. 

2.  That  the  administrator  of  J.  stands  in  the  place  of  his  in- 
testate, and  the  usury  of  the  original  contract  taints  and  avoids 
the  bond  taken  by  him  for  the  debt. 

In  the  case  of  Rankiris  Executors  .vs.  Rankin  s  Adtninistra- 
trators,  1  Grat.,  153,  decided  September,  1844.  H.  having  ob- 
tained a  judgment  against  the  administrators  of  R.  on  the  bond 
of  their  intestate,  files  a  bill  in  equity  to  obtain  satisfaction  of 
that  judgment,  out  of  the  assets  in  their  hands.  The  administra- 
tors in  their  answer  set  up  the  defence  that  the  bond  on  which 
the  judgment  was  obtained  was  usurious;  and  the  usury  which 
they  state  is  that  a  premium  given  for  the  forbearance  of  a  pre- 
existing debt  was  included  therein.  Held :  If  the  fact  is  proved 
that  the  defendants  are  only  entitled  to  relief  to  the  amount  of 
the  usurious  premium,  and  that  for  the  residue  of  the  debt,  H. 
is  entitled  to  rank  as  a  creditor  by  judgment  against  the  admin- 
istrators, on  the  specialty  of  their  intestate. 

In  the  case  of  Parker  vs.  Coumis,  2  Grat.,  372,  decided  Octo- 
ber, 1845,  it  was  held :  A  private  individual  discounts  commer- 
cial paper  and  deducts  the  interest  at  the  time  of  discount.  This 
is  not  usury. 

On  the  discount  of  commercial  paper  the  month  is  reckoned 
at  thirty,  the  year  at  three  hundred  and  sixty  days ;  and  interest 
of  one-half  per  cent,  for  thirty  days  is  taken.     This  is  not  usury. 

On  the  discount  of  a  note  for  the  maker,  it  is  agreed  that  it 
may  be  renewed  every  sixty  days  for  a  specified  time,  on  the 
maker's  pa3'ing  the  discount.  It  is  so  renewed,  and  upon  the 
renewals  interest  is  charged  twice  for  every  sixty-four  days. 
This  is  not  usury. 

A  usurious  security  is  given  for  a  pre-existing  ho7ia  fide  debt. 
Though  the  usurious  security  is  void,  the  pre-existing  debt  is 
still  a  valid  obligation,  and  may  be  recovered. 

In  the  case  of  Bank  of  Washington  vs.  Arthur^  3  Grat.,  173, 
decided  July,  1846.  A.  executes  to  S.  a  bond  for  forty  thousand 
dollars,  and  a  deed  of  trust  to  secure  it;  the  consideration  of 
which  bond  is  in  part  a  debt  due  from  A.  to  S. ;  in  part  debts  of 
A.  which  S.  undertook  to  pay;  and  for  the  balance  bank  and 
railroad  stocks,  at  prices  greatly  above  their  then  market  value. 
S.  being  largely  indebted  to  B.,  assigns  the  bond  and  deed  of 
trust  to  B.  as  a  collateral  security  for  his  debt ;  and  about  the 
same  time  fails,  and  is,  in  fact,  insolvent.  B.  gives  notice  to  A. 
of  the  assignment,  and  A.,  then,  without  stating  anything  to  B. 
of  the  nature  of  the  consideration  of  the  bond,  says  it  is  a  valid 
bond,  and  promises  to  pay  it.  Afterwards,  the  bond  not  being 
paid,  B.  directs  the  trustees  in  the  deed  of  trust  to  sell ;  and 


472  Citations  to  the  Code  of  Virginia. 

then  A.  goes  into  a  court  of  equity,  and  disclaiming  all  benefit 
of  discovery  from  the  defendant,  asks  that  the  trustees  may  be 
enjoined  from  selling  under  the  deed  till  B.  shall  establish  his 
claim  at  law.  Held:  The  bond  and  deed  of  trust  is  usurious 
and  void.  Though  the  bond  and  deed  of  trust  is  usurious  and 
void,  yet,  as  part  of  the  consideration  of  the  bond  was  a  pre- 
existing valid  debt,  which  continues  to  be  a  valid  debt,  a  court 
of  equity  will  not  compel  the  obligee  to  establish  his  claim  at 
law  before  proceeding  to  enforce  his  security.  Though  the  bill 
is  framed  for  the  purpose  of  staying  proceedings  on  the  deed 
and  compelling  the  creditor  to  establish  his  claim  at  law,  yet  as 
the  facts  disclosed  entitle  the  debtor  to  relief  upon  equitable 
terms,  the  court  will  not  dismiss  the  bill,  but  will  give  the  relief 
to  which,  upon  principles  of  equity,  the  debtor  is  entitled.  The 
promise  of  A.  made  after  the  assignment  to  B.,  having  been 
without  consideration,  created  no  new  contract.  The  failure  of 
A.  to  inform  B.  of  the  nature  of  the  consideration  of  the  bond, 
and  his  promise  to  pay  it  not  having  proceeded  from  any  fraud- 
ulent intent,  and  having  in  fact  operated  no  injury  to  B.,  cannot 
be  treated  as  fraudulent,  so  as  to  forbid  A.  to  set  up  the  charge 
of  usury  -against  the  bond. 

In  the  case  of  Porterfield  ys,.  Coiner,  4  Grat.,  55,  decided  July, 
1847.  P.  executed  his  bond  to  C.  for  five  hundred  dollars, 
payable  in  three  years.  The  bond  recites  that  it  is  not  to 
bear  interest  for  the  three  years,  P.  having  that  day  paid  C. 
ninety  dollars,  the  interest  thereon,  in  advance.  In  an  action 
on  the  bond  by  C.  against  P.,  P.  pleads  usury,  and  relies  upon 
the  recital  in  the  bond  to  sustain  his  plea.  Held :  C.  may  show 
that  the  interest  was  paid,  not  by  money,  but  in  land  at  an 
agreed  price  per  acre ;  and  that  such  price  was  not  the  esti- 
mated value  of  the  land  in  cash,  but  its  estimated  value  in 
reference  to  the  annual  interest  for  three  years,  as  the  same 
should  accrue  upon  the  debt  of  five  hundred  dollars.  And 
moreover,  to  corroborate  such  evidence  and  repel  the  idea  of  a 
corrupt  intent  to  take  usurious  interest,  he  may  prove  that  the 
actual  value  of  the  land  at  the  time  of  the  contract  was  less 
than  the  agreed  price,  whether  in  cash  or  on  instalments  of  one, 
two,  and  three  years. 

In  the  case  of  Laui's  Executors  vs.  Sutherland  et  als.,  5  Grat., 
357,  decided  January,  1849.  L.  and  C,  at  the  request  of  S., 
each  executes  his  bond  to  the  other,  and  they  sell  them  to  hona 
fide  purchasers,  and  pay  over  the  proceeds  to  S.,  who  executes 
his  bond  to  them  for  the  amount  of  their  bonds.  Held :  The 
purchasers  having  no  knowledge  of  the  fact  that  the  bonds  were 
thus  made,  their  purchase  at  a  discount  is  not  usurious. 

The  bond  of  S.  executed  to  L.  and  C.  is  not  usurious.  A  pay- 
ment made  by  a  debtor  to  his  creditor  cannot  be  appUed  by  the 


Citations  to  the  Code  of  Virginia.  473 

creditor  to  a  debt  arising  subsequently  without  the  assent  of 
the  debtor. 

In  the  case  of  Hansbarger  {Administrator)  vs.  Kinney,  Kin- 
ney vs.  Hansbarger  {Administrator),  6  Grat.,  287,  decided  July, 
1849.  In  a  debt  on  a  bond,  on  the  plea  of  usury,  the  defendant 
offered  e^ddence  for  the  purpose  of  proving  that  the  considera- 
tion of  the  bond  was  seven  other  bonds  which  were  before 
the  jury,  the  amount  which  was  less  than  the  first-mentioned 
bond;  and  moved  the  court  to  instruct  the  jury,  that  if  they 
were  satisfied  that  the  amount  of  the  seven  bonds  was  less  than 
the  amount  of  the  first-mentioned  bond  by  10  per  cent,  or  12  per 
cent.,  that  the  defendant  had  made  out  a.primufacie  case  of 
usury,  and  that  the  onus  was  then  on  the  plaintiff  to  prove  a 
further  consideration  to  the  amount  of  first  said  bond ;  and  if 
the}'  shall  believe  that  he  failed  to  furnish  such  proof,  they 
must  find  for  the  defendant.  The  court  refused  to  give  the  in- 
struction, and  remarked  to  the  jury  tl)at  the  party  who  pleads 
usury  must  prove  it.  Held :  There  was  no  error  in  refusing  the 
instruction,  or  in  the  instruction  given. 

In  the  case  of  Hopkins,  etc.  vs.  Koonce,  6  Grat.,  387,  decided 
October,  1849.  A  surety  in  a  bond  who  had  given  a  deed  of 
trust  to  secure  the  debt,  executes  another  deed  of  trust  to  secure 
another  debt  of  his  principal,  due  to  the  same  parties,  in  con- 
sideration of  the  forbearance  of  the  creditors  to  sell  under  the 
first  deed.  Held :  The  second  deed  is  given  upon  a  usurious 
consideration,  and  is,  therefore,  void. 

In  the  case  of  Bell  et  als.  vs.  Calhoun,  8  Grat.,  22,  decided 
July,  1851,  it  was  held:  In  December,  1842,  C.  assigned  to  B. 
a  bond  on  E.,  who  was  in  doubtful  circumstances,  for  $529.06, 
due  on  October  26,  1838,  and  subject  to  a  credit  of  $15  paid 
October  1,  1842,  for  which  B.  gave  him  $494.25;  and  C.  at  the 
same  time  executed  a  deed  of  trust  on  property,  with  condition 
if  the  bond  with  its  interest  was  not  paid  in  twelve  months,  the 
trustee  should  sell  and  pay  the  amount  to  B.  This  was  usu- 
rious. 

On  a  bill  to  enjoin  a  sale  under  the  deed  of  trust,  the  plain- 
tiff says  he  has  proof  and  does  not  wish  a  discovery,  but  that 
the  sale  may  be  enjoined  until  the  validity  of  the  deed  can  be 
tried  at  law.  Upon  an  issue  directed  by  the  court,  the  jury  find 
the  usury,  and  that  the  usurious  premium  is  the  difference  be- 
tween the  sum  advanced  by  C.  to  B.  and  the  bond  with  interest 
to  that  time,  subject  to  the  credit  for  $15.  Held:  That  the 
proper  relief  is  not  to  perpetuate  the  injunction  for  the  whole 
amount  of  the  bond  and  its  interest  due,  but  only  for  the  amount 
of  the  usurious  premium. 

In  the  case  of  Hope  vs.  Sviith  {Sheriff),  10  Grat.,  221,  decided 
July,  1853,  it  was  lield :  Usury  in  the  bonds  upon  which  the 


474  Citations  to  the  Code  of  Virginia. 

judgments  were  recovered  cannot  be  set  up  to  the  judgments, 
and  they  are  vahd  oflfsets,  there  being  no  fraud  in  the  procure- 
ment of  them. 

In  the  case  of  Haiisharger' s  Adimimstrators  vs.  Kinney,  13 
Grat.,  511,  decided  September  5, 1856,  it  was  held :  In  an  action 
at  law  on  a  bond  against  a  surety,  he  defends  it  on  the  grounds 
of  usury,  but  there  is  a  judgment  against  him.  The  surety  then 
files  a  bill  for  relief  against  the  judgment,  on  the  ground  of  after- 
discovered  evidence,  but  there  was  evidence  to  the  same  point 
before  the  jury.  The  after-discovered  evidence  being  merely 
cumulative,  it  is  not  ground  for  relief. 

In  the  case  of  Brocketiborough  {Executor)  vs.  Spindle's  Ad- 
mimstrator,  17  Grat.,  21,  decided  May  11,  1866,  it  was  held: 
It  is  the  established  rule  of  this  court  that  to  convict  a  person 
of  usury,  the  usury  must  be  proved  beyond  a  rational  doubt  to 
the  contrary. 

S.,  in  urgent  need,  asks  G.  where  he  can  get  money.  G. 
applies  to  B.,  and  is  told  by  B.  that  he  has  no  money  to  lend. 
Believing  that  Virginia  State  stock  would  relieve  S.,  it  is  sug- 
gested by  G.  that  such  stock  would  answer  in  lieu  of  money. 
To  this  proposal  B.  replies  that  he  might  accommodate  S.,  and 
G.  informs  S.  of  what  B.  said.  Subsequently,  B.  caused  the  re- 
quired amount  of  stock  to  be  transferred  in  accordance  with  the 
direction  of  S.,  who  executed  his  bond  to  B.  for  eleven  thousand 
dollars,  payable  three  years  after  date  with  legal  interest.  The 
sum  of  eleven  thousand  dollars  was  the  par  value  of  the  stock, 
while  its  cash  market  value  was  at  the  time  but  ninety-one  dol- 
lars in  the  hundred.  Held:  The  transaction  was  a  fair  sale, 
and  not  a  devise  to  cover  an  usurious  loan  of  money. 

The  question  of  usury  is  a  question  of  law  and  fact;  and  the 
facts  being  ascertained,  it  is  for  the  court  to  determine  whether 
they  constitute  usury ;  and  the  appellant  court  will  pass  upon 
the  question  either  upon  an  instruction  setting  out  the  facts 
proved,  and  asking  the  court  to  instruct  the  jury  that  they  do 
not  constitute  usury,  or  upon  a  motion  for  a  new  trial,  when  the 
court  certifies  the  facts  proved. 

In  the  case  of  Fant  vs.  Miller  i&  Mayh&w,  17  Grat.,  47,  de-. 
cided  October  6,  1866,  it  was  held :  Negotiable  notes  made  for 
the  accommodation  of  F.,  and  endorsed  by  him  to  the  holders, 
in  consideration  of  money  previously  advanced  by  them  to  him 
at  the  time  of  the  transfer,  and  of  notes  of  F.  falling  due  at  a 
future  day,  which  they  undertake  to  pay,  and  do  pay  as  they 
fall  due ;  all  of  which  amount,  to  the  full  amount  of  the  notes  so 
endorsed  to  them,,  the  holders  are  holders  for  value. 

In  the  case  of  Boulware  vs.  Newton,  18  Grat.,  708,  decided 
April,  1868.  N.  gives  his  bond  to  B.,  dated  January  29,  1863, 
by  which  on  demand,  three  months  after  notice  to  pay,  he  prom- 


Citations  to  the  Code  of  Virginia.  475 

ises  to  pay  B.  five  thousand  dollars,  without  interest,  in  current 
funds,  the  money  to  be  punctually  paid  at  the  end  of  three 
months  after  demand,  and  if  not,  to  bear  interest  from  demand ; 
B.  not  being  required  to  receive  the  money  except  at  his  pleasure. 
The  bond  is  given  for  five  thousand  dollars.  Confederate  notes, 
then  delivered  by  B.  to  N.,  which  were  then  worth  in  gold  but 
one-third  of  the  amount.  Held :  The  contract  is  valid,  and  B. 
is  entitled  to  recover  five  thousand  dollars  in  the  currency  of. 
the  day  when  the  money  is  demanded. 

It  is  a  contract  in  which  the  principal  is  at  hazard,  and, 
therefore,  not  usurious. 

In  the  case  of  Bru7imel  (&  Co.  vs.  Enders,  Sutton  <&  Co.,  18 
Grat.,  873,  decided  June,  1868.  B.  &  Co.  make  their  negotiable 
notes  blank  as  to  the  names  of  the  payees,  and  put  them  into  the 
hands  of  an  agent  to  be  sold  for  their  benefit.  The  agent  sells 
them  at  a  greater  discount  than  the  legal  rate  of  interest,  the 
purchaser  not  being  informed  that  they  were  sold  for  the  bene- 
fit of  B.  &  Co.,  and  the  names  of  the  purchasers  are  inserted  in 
the  blanks  as  payees,  either  by  the  agent  at  the  time  of  the  sales, 
or  by  themselves  afterwards.  The  purchasers  sue  upon  the 
notes,  describing  themselves  as  payees  against  B.  &  Co.  as 
makers,  and  B.  &  Co.  plead  usury.     Held :  It  is  not  usury. 

In  the  case  of  Drakes  Executor  vs.  Chandler  et  als.,  18  Grat., 
909,  decided  June,  1868,  it  was  held:  A.  B.  and  G.  execute  a 
bond  for  one  thousand  dollars  to  P.  for  a  loan  of  money  at  usu- 
rious interest.  Subsequently,  O.  J.  and  W.  with  B.,  who  signs 
himself  security,  execute  their  bond  to  P.  for  the  amount,  prin- 
cipal and  interest  of  the  first  bond,  and  another  small  bond  of 
A.,  in  lieu  of  the  bonds.  The  usury  is  purged  by  the  change  of 
the  parties,  and  the  last  bond  executed  is  valid. 

In  the  case  of  Gimmi  vs.  Cullen,  20  Grat.,  439,  decided 
March,  1871,  it  was  held :  G.  makes  his  note  which  is  endorsed, 
and  makes  a  deed  of  trust  on  land  to  secure  it,  and  puts  it  in 
the  hands  of  L.,  a  broker  and  banker,  to  sell,  and  L.  advances 
as  much  to  him  as  is  expected  will  be  the  net  proceeds  of  the 
note.  On  the  next  day  L.  offers  the  note  to  C.  at  1^  per  cent, 
per  month  discount.  C.  says  he  has  no  money,  but  L.,  who  has 
on  deposit  notes  for  C.  coming  soon  to  maturity,  proposes  to  ad- 
vance the  money  for  him,  and  C.  agrees  to  take  the  note,  if,  after 
examining  the  title  to  the  property,  he  is  satisfied.  L.  thereupon 
advances  to  G.  the  whole  of  the  net  proceeds  of  the  note.  C. 
examines  the  title  and  is  satisfied,  and  sixteen  days  afterwards 
he  pays  L.  the  money  he  had  advanced  for  him  and  interest 
upon  it  for  the  sixteen  days.  C.  has  no  knowledge  of  the  charac- 
ter of  the  note,  or  for  whose  benefit  it  is  sold.     This  is  not  usury. 

In  the  case  of  Towfi  of  Danville  vs.  Sntherlin,  20  Grat.,  555, 
decided  March,  1871,  it  was  held:  The  council  of  the  town  of 


476  Citations  to  the  Code  of  Virginia. 

Danville  has  authority  under  its  charter  to  contract  loans  and 
issue  certificates  of  debt.  In  1863,  the  council  issued  the  bonds 
of  the  city  to  be  sold  at  public  auction  for  Confederate  money 
and  for  a  bond  of  five  thousand  dollars,  bearing  6  per  cent,  in- 
terest, and  payable  at  the  end  of  twenty  years,  the  purchaser 
gave  eleven  thousand  and  fifty  dollars  Confederate  currency, 
being  at  the  time  as  ten  for  one  of  gold.     This  is  usury. 

In  the  case  of  The  City  of  Lynchburg  vs.  Norvell^  20  Grat., 
601,  decided  March,  1871,  it  was  held:  City  bonds,  payable 
thirty  days  after  date,  and  bearing  6  per  cent,  per  annum 
interest  from  their  date,  sold  in  1864  for  Confederate  money 
at  the  rate  of  two  and  one-half  for  one,  when  the  Confederate 
monej'  was  at  the  rate  of  twenty  to  one  for  gold.     This  is  usury. 

The  fact  that  these  bonds  might  be  paid  in  the  currency 
which  at  the  time  they  fell  due,  would  be  taken  by  the  State  for 
taxes,  does  not  constitute  such  a  contract  for  hazard  as  relieved 
it  from  the  taint  of  usury. 

In  the  case  of  Moffett  vs.  BlcMe,  21  Grat.,  280,  decided  Au- 
gust, 1871,  it  was  held :  In  an  action  of  debt  by  the  holder  of  a 
negotiable  note  against  the  maker  and  four  endorsers,  upon  the 
plea  of  usury  by  the  endorsers  the  jury  found  that  the  note  was 
endorsed  by  the  first  three  endorsers  for  accommodation  of  the 
maker,  and  was  sold  by  him  to  the  fourth  endorser  at  a  usuri- 
ous rate  of  interest,  who  afterwards,  and  before  it  became  due, 
endorsed  it  to  the  holder  for  value.  Upon  this  verdict  the  court 
should  render  a  judgment  in  favor  of  the  maker  and  the  first 
three  endorsers,  and  against  the  fourth  endorser,  under  the  act, 
Code,  Chapter  177,  Section  19,  p.  733. 

In  the  case  of  Michie  vs.  Jeffries  et  als.,  21  Grat.,  334,  de- 
cided August,  1871,  it  was  held:  J.  lent  to  G.  five  thousand 
dollars  and  took  his  bond  for  the  amount,  dated  April  17,  1862, 
payable  five  years  after  date  with  interest,  and  a  deed  of  trust 
on  land  to  secure  the  debt.  The  money  loaned  had  been  de- 
posited in  bank  in  January,  1861,  to  J.'s  credit,  and  she  gave  G. 
a  check  upon  the  bank  for  the  amount  in  the  usual  form.  This 
was  not  a  Confederate  contract,  and  is  not  liable  to  be  so  scaled. 

The  bond  and  deed  of  trust  are  not  tainted  with  usury ;  but 
if  they  were  it  should  not  be  set  up  for  the  first  time  in  argu- 
ment in  the  appellate  court ;  nor  could  M.  set  it  up  at  any  time, 
it  being  G.'s  debt,  and  M.  having  received  the  money  to  pay  it. 

In  the  case  of  Hilb  {for,  etc.)  vs.  Peyton  et  ah.,  2l'Grat.,  386, 
decided  August,  1871,  it  was  held :  P.  executes  his  bond  to  H. 
for  five  thousand  dollars,  dated  January  9,  18.63,  and  payable 
two  years  after  date  without  interest  "in  such  funds  as  the 
banks  receive  and  pay  out."  Parol  evidence  is  not  admissible 
under  Section  2  of  the  adjustment  act  of  March,  1866,  to  prove 
the  kind  of  currency  in  which  the  bond  was  to  be  paid,  or  with 


Citations  to  the  Code  of  Virginia.  •     477 

reference  to  which  as  a  standard  of  value  it  was  made  and 
entered  into.     Such  a  bond  creates  a  contract  of  hazard. 

In  the  case  of  White  vs.  Jlch.  Building  t'und  Association, 
22  Grat.,  233,  decided  June  12,  1872,  it  was  held:  W.,  a  share- 
holder in  a  building  fimd  association,  having  obtained  an  ad- 
vance of  money  oil  his  shares,  the  association  thereby  acquired 
the  right  of  property  therein ;  and  tlie  assignment  of  the  asso- 
ciation for  the  advances  he  received  was  not  a  hypothecation 
for  a  loan,  but  an  absolute  surrender  of  them  to  the  association, 
whereby  they  were  sunk  and  extinguished,  and  cannot  entitle 
the  said  W.  to  participate  in  the  final  division  and  distribution 
of  the  funds  of  the  association. 

The  assignment  of  his  shares  by  W.  to  the  association  does 
not  release  him  from  his  covenant  as  a  party  to  the  articles  of 
the  association  to  make  his  regular  monthly  payment  on  shares, 
and  on  account  of  fines ;  and  the  enforcement  of  his  said  obliga- 
tion is  secured  by  his  bond  and  deed  of  trust,  by  which,  also, 
he  obligates  himself  to  pay  six  per  cent,  interest  on  the  sum 
received,  as  authorized  by  the  statute,  until  the  termination  of 
the  association ;  and  the  transaction  between  the  parties  is  not 
usurious,  nor  within  the  prohibition  of  the  statute. 

In  the  case  of  Graeme  vs.  Adams,  23  Grat.,  225,  decided 
March,  1873,  it  was  held:  A.  contracts  to  build  for  G.  in  the  city 
of  Kichmond  certain  houses,  according  to  a  plan  and  specifica- 
tions, for  the  sum  of  $54,700,  payable  in  annual  instalments  of 
$12,000,  to  bear  interest  at  the  rate  of  $7.30  per  cent,  per  annum, 
to  be  secured  by  deed  of  trust  on  the  property.  If  the  interest 
was  a  part  of  the  contract  price  of  the  buildings  the  contract  is 
not  usurious ;  if  it  was  for  the  loan  of  money  or  other  thing,  or 
for  the  forbearance  of  a  debt  due,  it  was  usurious. 

A.  claims  that  he  entered  into  another  subsequent  contract 
with  G.  which  was  to  bear  six  per  cent,  interest.  If  the  first 
contract  was  usurious,  all  the  usury  included  in  it  must  have 
been  excluded  from  the  second,  or  it  is  usurious. 

The  price  under  which  the  work  was  done  under  the  second 
contract  was  just  as  much  greater  than  that  provided  for  in  the 
first  as  the  difierence  of  the  interest  on  that  sum  at  six  and 
$7.30  per  cent,  per  annum  for  the  whole  time  of  the  credit,  viz., 
$57,800 ;  and  when  the  work  was  completed,  notes  payable  as 
agreed  on  in  the  contract  were  taken,  bearing  six  per  cent,  in- 
terest from  their  date  until  their  time  of  payment.  If  this  addi- 
tion to  the  first  sum  contracted  for  was  for  the  loan  of  money, 
or  other  thing,  or  for  the  forbearance  of  a  debt  due,  the  second 
contract  is  usurious,  but  if  it  was  not  for  such  loan  or  forbear- 
ance, it  was  not  usurious. 

Forbearance  in  the  sense  of  the  statute  in  relation  to  usury 
is  the  giving  a  further  day  for  the  return  of  a  loan  when  the 


478     '  Citations  to  the  Code  of  Virginia. 

time  originally  agreed  on  is  passed,  and  if  the  rate  of  interest 
agreed  on  for  such  forbearance  is  over  six  per  cent,  per  annum, 
it  is  usurious. 

If  the  contract  for  the  price  of  the  houses  is  payable  in  instal- 
ments bearing  interest,  that  contract  cannot  be  discharged  by 
the  tender  of  cash  at  the  time  when  the  buildings  are  completed. 
A  debtor  has  no  right  to  anticipate  the  payment  of  a  debt  pay- 
able at  a  future  day,  and  bearing  interest,  without  the  consent 
of  the  creditor. 

In  the  case  of  Turpin  vs.  SUeWs  Executor,  23  Grat.,  238,  de- 
cided March,  1873,  it  was  held :  T.  executes  his  bond  to  S.,  by 
which  on  demand  he  promises  to  pay  to  S.,  in  gold  or  silver,  or 
the  equivalent  thereof,  $2,400.  This  is  a  promise  to  pay  $2,400 
in  gold  or  silver  coin,  or  the  equivalent  thereof,  and  debt  may 
be  maintained  upon  it. 

The  bond  was  dated  May,  1866,  and  the  consideration  proved 
was  a  debt  due  before  the  war  of  uncertain  amount,  and  $1,670 
in  United  States  currency  advanced  at  the  date  of  the  bond, 
when  the  currency  was  at  129  1-8  for  gold  and  121  for  silver. 
As  it  does  not  appear  what  was  the  amount  of  the  ante-war 
debt,  usury  is  not  proved. 

The  reference  to  25  Grat.,  1,  is  to  the  case  of  Town  of  Dan- 
ville vs.  Pace,  cited  to  Section  2821. 

In  the  case  of  Bowman  vs.  Miller  c&  Co.,  et  als.,  25  Grat.,  331, 
decided  September,  1874.  B.  being  in  want  of  money  in  August, 
1867,  went  to  the  city  of  Baltimore  with  a  negotiable  note  for 
$3,500,  blank  as  to  the  State  and  place  of  payment,  but  signed 
by  himself  and  endorsed  by  five  persons,  he  and  they  living  in 
Virginia.  This  note  he  sold  to  M.,  of  Baltimore,  at  a  discount 
of  one  and  one-fourth  per  cent,  per  month ;  the  proper  date  was 
inserted  and  the  place  of  payment  fixed  at  the  National  Ex- 
change of  Baltimore.  This  note  was  renewed  with  the  same 
parties,  and  in  April,  1868,  B.  made  a  payment  on  it  of  $550 ; 
and  another  note  to  meet  the  balance  was  made  by  the  same 
parties,  payable  at  the  same  bank,  and  M.  agreed  to  take  this 
note  at  the  same  discount.  The  last  note  not  being  paid,  M. 
sent  it  and  all  the  previous  notes  and  papers  connected  with 
the  loan,  with  a  statement  of  the  amount  due  him,  to  a  friend 
residing  in  Harrisonburg,  with  a  request  that  he  would  take  B.'s 
note  for  what  was  due,  endorsed  by  the  same  parties.  This 
was  done,  and  the  note  was  made  payable  at  the  National  Bank 
of  Harrisonburg.  Held :  The  taking  of  the  last  note  was  not  a 
novation  of  the  previously  existing  debt,  but  the  contract  is  still 
a  Maryland  contract,  to  be  governed  by  the  law  of  Maryland. 

By  the  law  of  Maryland  the  contract  was  not  null  and  void, 
but  M.  might  recover  upon  it  there  the  principal  and  the  legal 
interest. 


Citations  to  the  Code  of  Virginia.  479 

The  last  note  not  providing  on  its  face  for  the  payment  in 
future  of  more  than  legal  interest,  it  not  being  a  Virginia  con- 
tract, and  not  being  void  by  the  law  of  Maryland,  it  will  be  en- 
forced as  a  Maryland  contract  in  the  courts  of  Virginia. 

In  the  case  of  CoJ'man  d;  Bonify  vs.  Miller  &  Co.^  26  Grat., 
698,  decided  October  9,  1875.  B.,  of  Harrisonburg,  Virginia, 
was  indebted  to  M.,  of  Baltimore,  Maryland,  b}'^  various  notes 
and  accounts,  on  some  of  which  notes  usurious  interest  was 
charged.  In  February,  1868,  B.  and  M.  made  a  full  settlement, 
by  which  B.  transferred  to  M.  judgments  and  debts  to  the 
amount  of  his  debt ;  and  it  was  agreed  that  M.  should  prosecute 
these  claims,  and  if  any  of  them  proved  insolvent,  that  M.  might 
recover  from  B.  any  deficit  that  remained ;  and  then  M.  de- 
livered to  B.  all  his  notes  and  accounts.  Some  of  the  claims 
transferred  to  M.  proved  worthless,  and  in  June,  1869,  B.  gave 
to  M.  his  note  endorsed  by  C,  made  and  payable  in  Harrison- 
burg, for  the  amount  of  the  deficit.  Held:  The  note  was 
founded  on  a  new  contract,  on  a  new  consideration,  and  the 
usury  in  the  previous  notes  given  by  B.  to  M.  before  their  set- 
tlement does  not  afi'ect  it. 

In  the  case  of  Backhouse  {Executor)  vs.  Selden,  29  Grat.,  581, 
decided  December  19,  1877.  Where  a  bond  dated  in  Texas, 
signed  by  the  principal  obligor,  a  resident  of  Texas,  and  by  two 
sureties,  residents  of  Virginia,  payable  to  a  resident  of  Virginia, 
when  the  drafts  which  were  the  consideration  of  the  bond  were 
sent  to  and  received  in  Texas,  and  the  money  borrowed  used 
in  Texas  by  the  principal  obligor.  Held:  To  be  a  contract 
governed  by  the  laws  of  Texas,  and  not  affected  by  the  laws  of 
usury  in  Virginia. 

In  the  case  of  Mosely  {Trustee)  vs.  Brown  et  als.,  76  Va.,  419. 

Usury. — -Sale  at  discount  greater  than  legal  interest  of  nego- 
tiable notes,  made  and  endorsed  in  blank  for  purpose  of  raising 
money,  by  broker  for  maker  to  purchaser  ignorant  of  that  pur- 
pose, is  not  usury. 

2.  Idem. — But  payment  of  illegal  interest,  after  maturity  of 
notes  for  forbearance,  is  usury,  and  the  usurious  premium  may 
be  recovered  back. 

In  the  case  of  Ilansuck&t  et  als.  vs.  Walker  et  als.,  76  Va., 
753. 

Commissioner's  Report. — Usurious  Interest. — From  face  of 
report,  usurious  interest  was  paid ;  no  exception  when  report 
was  adopted;  afterwards  exception  was  endorsed,  but  attention 
of  court  not  called  thereto.  Held:  The  decree  cannot  be  re- 
versed on  that  ground,  but  on  other  grounds  being  remanded, 
the  court  below  can  disallow  the  usurious  interest,  and  apply 
excess  as  a  credit  to  the  debt. 

In  the  case  of  Bailey  (J/.  C),  loho  sues  hy,  etc.  vs.  IliU^  et  als,. 


480  Citations  to  the  Code  of  Virginia. 

77  Va.,  492,  decided  May  10,  1883,  it  was  held :  Where  maker 
of  negotiable  note,  payable  to  his  own  order,  endorses  it  and 
sells  it  through  a  third  person  at  a  rate  of  interest  greater  than 
that  allowed  by  law,  the  transaction  is  not  usurious,  provided 
the  purchaser  does  not  know  the  character  of  the  note,  or  that 
it  is  sold  for  the  benefit  of  the  maker.  If  the  purchaser  is 
effected  with  such  knowledge  by  the  circumstances,  then  the 
transaction  is  usurious. 

In  the  case  of  Christian  (&  Gunn  vs.  Worsham  {Treasurer),  78 
Va.,  100,  decided  December  6,  1883,  it  was  held :  The  plea  of 
usury  is  a  defence  personal  to  the  debtor  certainly  as  concerns 
landed  security,  and  however  third  persons  interested  in  the 
lands  may  be  incidentally  affected  by  a  usurious  contract  affect- 
ing it,  they  cannot  take  advantage  of  it.  Section  2824  does  not 
apply  in  favor  of  a  mortgagee  where  a  successful  charge  of 
usury  has  been  made  against  a  prior  mortgagee  in  a  suit 
brought  against  them  both,  and  such  usury  has  been  purged  by 
the  court. 

In  the  case  of  KecMey  vs.  Union  Bank  of  Winchester^  79  Va., 
458,  decided  October  2,  1884.  Special  plea  avers  that  note  in 
suit  was  made  for  balance  of  a  note  given  by  one  not  a  party  to 
the  suit,  for  the  aggregate  of  sundry  notes,  one  whereof  was  un- 
due, and  that  there  was  no  allowance  made  for  that  fact  in  ascer- 
taining such  aggregate,  and  that  hence  interest  having  been 
twice  exacted  for  the  sum  of  the  undue  note.  The  note  for  the 
aggregate  was  usurious  and  tainted  the  note  in  the  suit.  Held : 
Failing  to  include  the  present  worth  only,  instead  of  the  face 
value  of  the  undue  note,  did  not  constitute  usury  in  the  note 
for  the  aggregate,  but  if  it  did,  the  taking  of  the  note  in  suit  was 
such  a  change  of  parties  as  purged  the  transaction  of  usury,  and 
the  note  is  valid. 

In  the  case  of  Whitens  Administrator  vs.  Freeman,  79  Va., 
597,  decided  December,  4,  1884,  it  was  held :  Though  the  stat- 
ute of  usury  at  date  of  contract  declares  it  to  be  null,  yet  if  at 
date  of  decree  the  statute  has  been  changed,  and  only  annuls 
contract  for  interest,  decree  should  be  for  principal  loaned,  with 
interest  from  date  of  decree. 

Though  the  notes  be  usurious  and  null,  yet  if  part  of  their 
consideration  was  a  pre-existing  valid  debt,  which  continues  to 
be  a  valid  debt,  the  decree  should  be  for  the  principal  of  the 
new  notes,  with  interest  on  the  pre-existing  debt  from  the  time 
it  was  entitled  to  bear  interest. 

In  the  case  of  Turner  vs.  Turner,  80  Va.,  379,  decided  April 
2,  1885,  it  was  held :  Where  an  instrument  on  its  face  reserves 
more  than  the  legal  rate  of  interest,  it  is  usurious  in  its  incep- 
tion, and  judgment  shall  be  rendered  for  the  principal  sum  only, 
although  the  defendant  may  have  filed  no  plea  of  usury. 


Citations  to  the  Code  of  Virgd^ia.  481 

In  the  case  of  Vaught  vs.  Rider  {Trustee)  et  ah.,  83  Va.,  659, 
decided  September,  1887,  it  was  held :  Though  every  security 
for  a  usurious  debt,  however  often  renewed,  is  tainted  by  the 
original  illegal  consideration,  yet  a  loan  of  money  to  the  debtor 
to  pay  such  a  debt  is  not  affected  by  such  illegality,  notwith- 
standing the  loaner  was  aware  of  the  purpose  for  which  it  was 
borrowed. 

In  the  case  oiKeagy  etals.  vs.  Trout  et  als.,  85  Va.,  390,  de- 
cided September  20,  1888.  Where  one  agrees  to  pay  to  another 
a  certain  sum  called  by  them  "brokerage,"  to  negotiate  and 
guarantee  a  loan  for  him  and  also  to  pay  attorney's  fees  for 
making  abstracts  of  title  to  the  property  whereon  the  loan  is 
to  be  secured,  though  such  sums  exceed  lawful  interest.  Held  : 
They  not  being  for  loan  or  for  forbearance  of  money  do  not 
constitute  usury. 

In  the  case  of  Myers  and  Wife  vs.  Williams  ( Trustee)  et  als., 
85  Va.,  621,  decided  January  10,  1889,  it  was  held:  Where 
there  is  no  loan,  or  forbearance  to  collect  an  existing  debt,  there 
can  be  no  usury. 

Debtor's  property  having  been  sold  under  decree,  she  agreed 
with  R.  that  if  he  would  set  aside  the  sale,  and  give  her  a  rea- 
sonable time  to  pay  for  it,  she  would  pay  him  $1,000.  R.  put 
in  an  upset  bid  and  the  sale  was  set  aside.  Later  the  liens,  having 
been  ascertained  to  be  $4,441.83  exclusive  of  interest  and  costs, 
she  conveyed  the  property  to  R.  "  for  $6,000  cash  in  hand  paid," 
but  really  that  R.  pay  off  the  liens,  etc.,  and  the  balance  of  $6,- 
000  if  any  to  her.  Same  day  R.  agreed  to  resell  her  the  pro- 
perty at  $7,000,  with  interest  payable  annually,  in  ten  equal 
annual  instalments.  After  R.  had  paid  off  said  liens,  etc., 
she  being  in  default  in  her  part,  he  brought  his  bill  to  enforce 
his  lien  for  the  unpaid  price  of  the  resale,  and  she  pleaded 
usury.     Held :  The  transaction  has  no  characteristic  of  usury. 

In  the  case  of  Meein  vs.  Dulaneij^  88  Va.,  674,  decided  Jan- 
uary 28,  1892.  A  borrower  of  money  in  1876  agreed,  by  his 
bond,  to  pay  lender  six  per  cent,  per  annum,  and  by  a  separate 
instrument  to  indemnify  him  for  any  state  taxes  that  might  be 
imposed  on  his  bond.     Held :  The  transaction  was  usurious. 

In  such  case  the  borrower  is  entitled  to  be  relieved  from  pay- 
ment of  all  tave  the  principal,  and  to  have  all  payments  made 
on  account  of  interest  deducted  from  the  principal. 

Neither  the  doctrine  that  money  paid  on  an  illegal  contract 
cannot  be  recovered  back,  nor  the  doctrine  of  the  application  of 
payments  applies  to  case  of  payments  of  money  on  usurious 
contracts. 

Section  2816. 

This  reference  to  1  Wash.,  164,  is  an  error. 

In  the  case  of  Strode  vs.  Head,  2  Wash.,  192  (1st  edition, 
31 


482  Citations  to  the  Code  of  Virginia. 

p.  149),  decided  "October  term,  1795,  in  debt  upon  a  bond  in  the 
penalty  of  eighteen  hundred  pounds  Pennsylvania  currency  of 
the  value  of  fourteen  hundred  and  forty  pounds  Virginia  cur- 
rency. The  defendant  having  confessed  judgment,  it  was  en- 
tered for  eighteen  hundred  pounds  Pennsylvania  currency  of 
the  value  of  foui"teen  hundred  and  forty  pounds  current  money 
of  Virginia,  to  be  discharged  by  the  payment  of  seven  hundred 
and  twenty  pounds  current  money  of  Virginia  with  interest,  etc. 
Held:  The  confession  of  the  judgment  fixed  the  value  of  the 
money  and  furnished  the  clerk  with  a  standard  for  ascertaining 
the  value  of  the  sum  mentioned  in  the  condition.  A  jury  was 
unnecessary. 

In  the  case  of  Taylor  <&  Go.  vs.  MClean,  3  Call,  557  (2d  edi- 
tion, 481),  decided  December  4,  1790,  it  was  held :  It  is  neces- 
sary, on  judgments  for  sterling  money,  that  the  court  should  fix 
the  rate  of  exchanges. 

Section  2818. 

In  the  case  of  Moshy  vs.  St.  Louis  Mutual  Insurance  Com- 
pany, 31  Grat.,  629,  decided  March,  1879,  it  was  held :  Though 
the  statute  of  usury,  at  the  time  the  contract  was  made,  declares 
the  contract  to  be  null  and  void,  if  at  the  time  of  the  decree  in 
the  case  the  statute  has  been  amended  and  only  avoids  the 
contract  for  the  interest,  the  decree  should  be  for  the  principal 
loaned,  with  interest  from  the  date  of  the  decree. 

See  the  case  of  Mosely  {Trustee)  vs.  Brown,  76  Va.,  419,  supra. 
Chapter  130. 

See  Bailey  vs.  Hill  et  als.,  77  Va.,  492,  supra.  Section  130. 

See  case  of  Christian  c&  Gunn  vs.  Wo?'sha7n  (Treasurer),  IS 
Va.,  100,  ante.  Chapter  130. 

See  case  of  White's  Administrator  vs.  Freeman,  79  Va.,  597, 
ante.  Chapter  130. 

Section  2821. 

In  the  case  of  Town  of  Danville  vs.  Pace,  25  Grat.,  1,  decided 
April  8,  1874,  it  was  held:  The  statute  is  retro-active  in  its 
operations,  and  applies  to  contracts  made  by  a  corporation  be- 
fore the  passage  of  the  act,  and  this,  though  suit  has  been 
brought  upon  such  contract  before  its  passage,  and  the  act  is 
not  in  violation  of  the  Constitution  of  the  United  States  or  of 
that  of  Virginia. 

In  the  case  of  King  vs.  Buck  et  als.,  30  Grat.,  828,  decided 
October  3,  1878,  it  was  held:  Under  this  section  the  judgment 
is  to  be  for  the  principal  sum  ascertained  to  be  due  after  deduct- 
ing the  usury  and  interest  on  that  principal  from  the  date  of  the 
judgment. 

See  case  of  Turner  vs.  Turner,  80  Va.,  379,  ante.  Chapter 
130. 


Citations  to  the  Code  of  Virginia.  483 

Section  2822. 

In  the  case  of  Stone  vs.  Ware  (&  Smith,  6  Munf.,  541,  decided 
March  22,  1820,  it  was  held :  A  creditor,  by  threatening  to  have 
execution  levied,  induced  the  debtor  to  allow  him  15  per  cent, 
per  annum  upon  the  debt,  and  to  give  bond  as  principal  obligor, 
in  which  the  creditor  joined  as  security,  payable  at  a  future  day 
to  a  third  person,  to  whom  the  amount  was  hojia  fide  due,  and 
who  knew  nothing  of  such  usurious  agreement.  The  debtor 
was  entitled  to  no  relief  in  equity  against  such  innocent  third 
person,  not  even  by  a  decree  to  compel  the  usurer  to  pay  him 
the  debt  in  discharge  of  the  complaint. 

The  usurious  agreement  being  proved,  and  the  bill  not  exhi- 
bited for  a  discovery,  the  court  gave  relief  against  the  usurer 
upon  the  terms  of  the  debtor's  paying  him  the  principal  justly 
due,  with  legal  interest. 

The  reference  to  1  Rand.,  172,  is  to  a  mere  quaere  whether 
upon  such  bill  the  complaint  shall  be  relieved  from  the  debt  in 
tuto,  or  only  from  the  interest. 

In  the  case  of  Young  vs.  Scott,  4  Rand.,  415,  decided  August, 
1826,  it  was  held :  In  all  cases  where  a  party  applies  to  a  court 
of  equity 'for  relief  against  an  usurious  contract,  whether  it 
alleges  in  his  bill  that  he  is  able  to  prove  the  usury  without  the 
defendant's  confession  or  not,  he  can  only  be  relieved  upon  pay- 
ment of  principal,  without  interest,  under  the  third  section  of 
our  act  of  Assembly.     Decided  by  two  judges  out  of  three. 

In  the  case  of  Clarkson's  Administrator  vs.  Garland  et  ah.y 
1  Leigh,  147,  decided  March,  1829,  it  was  held.  C.  wanting  to 
raise  two  thousand  three  hundred  and  thirty-live  dollars,  tells  J. 
this,  and  offers  as  many  slaves  as  will  command  that  sum,  upon 
which  J.  pays  him  two  thousand  three  hundred  and  thirty-five 
dollars,  in  gross,  for  sixteen  slaves,  and  C.  gives  him  a  bill  of 
sale  thereof,  and  it  is  at  the  same  time  agreed  that  the  slaves 
shall  remain  in  C.'s  possession  on  hire  for  one  year;  and  if  at 
the  end  of  one  year  C.  shall  pay  J.  two  thousand  nine  hundred 
and  thirty-five  dollars,  J.  shall,  in  consideration  thereof,  resell 
the  slaves  to  him.  If  any  of  the  slaves  die  during  the  year,  0. 
to  pay  same  price,  and  no  less,  for  survivors ;  and  if  C.  shall  not 
pay  the  two  thousand  nine  hundred  and  thirty-five  dollars  punc- 
tually, J.'s  agreement  to  resell  them  to  him  to  be  void.  Held : 
A  shift  to  evade  statute  of  usury  and  contract  usurious.  C. 
contracting  usurious  debts  to  G.  gives  him  a  deed  of  trust  to 
slaves  to  secure  it;  afterwards  C.  voluntarily  surrenders  trust 
slaves  to  trustee,  to  be  sold  to  satisfy  the  debt.  At  trustee's 
sale,  in  itself  fair,  G.  buys  greater  part  of  trust  slaves,  and  the 
proceeds  of  sales  are  applied  to  the  debt.  Held :  Though  deed 
of  trust  be  usurious,  yet  trustee's  sale  of  the  subject  of  G.,  the 
usurious  creditor,  shall  not  be  disturbed  in  equity. 


484  Citations  to  the  Code  op  Virginia. 

Thougli  where  one  resorts  to  equity  for  relief  against  usurious 
debt  yet  unpaid,  lie  shall  be  required  to  pay  only  the  principal 
advanced  to  him  without  even  lawful  interest,  according  to  the 
statute  of  Virginia,  yet  where  the  debtor  seeks  in  equity  an  ac- 
count of  and  decreed  for  money  already  paid  on  usurious  co6- 
tract,  the  measure  of  relief  is  the  excess  paid  above  principal 
and  lawful  interest,  and  if  this  payment  exceed  lawful  interest^ 
the  surplus  with  interest  shall  be  decreed  to  him. 

In  the  case  of  Fulcher  vs.  Baker  et  als.,  1  Leigh,  453,  decided 
November,  1829,  it  was  held :  In  a  bill  for  relief  against  usury,, 
plaintiff  charges  usury  exacted  at  the  rate  of  two  and  a  half  or 
three  per  cent,  per  month.  Defendant  in  his  answer  admits  he 
exacted  usury,  but  says  he  does  not  remember  the  rate;  and 
there  is  no  proof  to  ascertain  the  rate.  Held :  That  in  tliia 
state  of  the  case  the  court  should  consider  the  rate  of  usury 
two  and  a  half  per  cent,  per  month. 

In  the  case  of  Turpin  vs.  Povall  et  als.,  8  Leigh,  93,  decided 
February,  1837.  A  borrower  at  usurious  interest,  having  exe- 
cuted a  bond  and  deed  of  trust  to  secure  repayment  of  the  loan, 
files  a  bill  in  equity  against  the  lender  and  the  trustee,  alleging 
the  usury,  and  that  the  trustee  is  about  to  sell  the  property  con- 
veyed to  raise  the  amount  of  the  bond,  and  praying  that  de- 
fendants may  be  compelled  to  answer  all  the  allegations  of  the 
bill;  that  the  sale  by  the  trustee  may  be  enjoined,  the  trust 
property  thus  re-conveyed  to  plaintiff,  the  bond  delivered  up 
on  such  terms  and  conditions  as  are  equitable,  and  that  such 
other  and  further  relief  may  be  granted  to  plaintiff  as  is  agree- 
able to  equity  and  the  nature  of  his  case.  The  lender  by  his 
answer  denies  the  usury,  but  it  is  proved.  Held :  Though  the 
borrower  might  have  elected  to  ask  merely  the  opportunity  of 
trying  the  question  of  usury  at  law,  yet,  as  by  the  terms  of  his 
bill  he  has  sought  full  relief  in  equity,  he  shall  only  be  relieved 
upon  the  terms  of  paying  the  principal  money  due. 

On  a  bill  in  equity  for  relief  against  a  usurious  debt  unpaid, 
whether  the  usury  be  confessed  in  the  answer  or  proved  by  the 
evidence,  the  plaintiff  shall  be  relieved  on  payment  of  the  prin- 
cipal justly  due,  without  interest.  Dissentiente  Brook,  J.,  who 
held  that  where  usury  is  not  discovered  by  the  answer,  but 
proved  aliunde,  the  case  is  not  within  Section  3  of  the  statute 
against  usury,  1  Kev.  Code,  Chapter  102,  and  the  plaintiff  should 
therefore  be  compelled  to  pay  the  principal,  with  legal  interest. 

A  contract  entered  into  in  another  State,  in  violation  of  the 
usury  law  of  that  State,  cannot  be  considered  as  made  with 
reference  to  the  law  of  the  place  of  contract,  but  the  rights  of 
the  contracting  parties,  if  litigated  in  this  State,  must  be  de- 
termined by  our  own  law. 

In  the  case  of  Campbell  vs.  Patterson,  11  Leigh,  113,  decided 


Citations  to  the  Code  of  Virginia.  485 

April,  1840.  The  obligor,  in  a  bond  secured  by  a  deed  of  trust, 
files  a  bill  in  equity  against  the  obligee  and  the  trustee,  alleging 
that  the  bond  was  given  for  money  borrowed  at  usurious  in- 
terest, and  that  such  interest  (some  of  it  compound)  was  in- 
cluded therein ;  calling  for  a  discovery  of  the  amount  of  money 
advanced,  and  the  rate  of  interest  reserved,  and  praying  an  in- 
junction to  stay  all  proceeding  on  the  trust-deed  until  the  mat- 
ter can  be  fully  heard  in  equity;  that  all  compound,  illegal,  and 
usurious  interest  may  be  expunged;  that  the  plaintiff  may  have 
such  further  relief  as  his  case  may  require  and  justice  dictate, 
and  that  all  persons  be  released  from  all  penalties  of  the  statute 
against  usury.  Held:  The  bill  is  not  within  the  statute,  and 
the  plaintiff  is  only  entitled  to  relief  upon  the  terms  of  paying 
the  principal  money  borrowed,  with  legal  interest  thereon. 

In  the  case  of  Martm  vs.  Hall,  9  Grat.,  8,  decided  July  12, 
1852,  it  was  held :  A  deed  of  trust  upon  land  is  executed  to 
secure  an  usurious  debt;  afterwards  a  new  bond  is  executed 
from  which  all  the  usurious  premium  is  excluded,  and  it  is 
agreed  between  the  parties  that  the  deed  of  trust  shall  stand  as 
a  security  for  the  new  bond.  SubsequeJht  to  the  execution  of 
the  new  bond  and  this  agreement,  a  third  party  recovers  a  judg- 
ment against  the  grantor  upon  a  bond  executed  before  the  deed 
of  trust  was  executed,  and  files  a  bill  to  set  aside  the  deed  of 
trust  as  usurious.  Held :  If  the  usury  had  been  expunged  by 
the  parties  by  their  second  agreement,  the  plaintiff  coming  into 
equity  for  relief  could  only  obtain  it  to  the  extent  of  the  usuri- 
ous premium.  The  parties  having  by  their  second  agreement 
done  all  that  a  court  of  equity  would  have  done,  and  having 
agreed  that  the  deed  6f  trust  should  stand  as  security  for  the 
second  bond,  that  agreement  is  valid,  and  the  deed  will  be  held 
as  a  security  for  the  bond.  The  court  having  possession  of  the 
case  will  decree  the  sale  of  the  lands  and  the  application  of  the 
proceeds,  according  to  the  priority  of  the  parties  having  liens 
upon  it. 

In  the  case  of  Wise  vs.  Lamb,  9  Grat.,  294,  decided  August 
28,  1852.  S.  files  a  bill  against  W.  and  his  assignees  to  enjoin 
two  judgments,  one  for  twelve  hundred  dollars,  the  other  for 
three  hundred  dollars,  recovered  upon  bonds  executed  by  S.  to 
his  son,  and  by  his  son  assigned  to  Wl  on  the  ground  of  usury. 
The  usury  as  stated  in  the  bill  amounted  to  three  hundred  dol- 
lars, for  which  the  small  bond  was  given.  W.  answered  the  bill, 
meeting  and  denying  explicitly  all  its  allegations  in  regard  to  the 
usury.  The  son  was  examined  as  a  witness  by  S.,  and  proved 
the  usury  as  stated  in  the  bill,  but  his  testimony  was  excepted 
to  by  the  defendants.  No  other  wtness  speaks  as  to  the  usury. 
On  filing  his  answer,  W.  gave  notice  that  he  would  move  for  a 
dissolution  of  the  injunction  at  the  next  term ;  and  accordingly 


486  Citations  to  the  Code  op  Virginia. 

at  the  next  term  of  the  court  the  motion  was  made,  and  the  in- 
junction was  dissolved  as  to  the  principal  of  the  judgment  for 
twelve  hundred  dollars,  but  was  continued  as  to  the  residue. 
At  the  next  term  of  the  court  a  motion  was  made  to  dissolve  the 
injunction  in  toto,  but  the  court  overruled  the  motion,  and  di- 
rected an  issue  to  try  the  question  of  usury ;  and  upon  the  trial 
of  the  issue  the  verdict  of  the  jury  was  that  the  bonds  were,  in 
fact,  executed  upon  an  usurious  consideration  as  stated  in  the 
bill,  and  the  court  thereupon  perpetuated  the  injunction.  Upon 
appeal.  Held :  The  testimony  of  the  son,  the  obligee  in  the 
bonds,  was  not  competent  evidence  to  prove  the  usury  in  a  con- 
troversy between  the  obligor  and  assignee. 

The  answer  having  fully  and  explicitly  denied  the  allegations 
of  the  bill  as  to  the  usury,  and  there  being  no  competent  evi- 
dence to  prove  it,  the  court  should,  when  the  motion  was  first 
made,  have  dissolved  the  injunction  in  toto.  So  when  the  second 
motion  to  dissolve  was  made,  it  should,  for  the  same  reason, 
have  been  sustained,  and  if  the  cause  was  ready  for  a  final  hear- 
ing, the  bill  should  have  been  dismissed,  and  it  was  error  to 
direct  an  issue.  Th^  issue  having  been  improperly  directed, 
the  injunction  should  have  been  dissolved  and  the  bill  dismissed 
upon  the  final  hearing,  notwithstanding  the  verdict  of  the  jury 
finding  the  usury  as  charged  in  the  bill. 

In  the  case  of  Belton  vs.  Apperson,  26  Grat.,  207,  decided 
April  22,  1875.  In  June,  1868,  B.  filed  his  bill  to  enjoin  a  sale 
of  real  estate  by  A.,  the  trustee  in  a  deed  given  to  secure  the 
payment  of  a  negotiable  note  for  one  thousand  three  hundred 
dollars.  He  says  he  supposed  C.  was  the  owner  of  the  note, 
and  charges  usury  in  it  and  sets  it  out*.  He  makes  C.  and  A. 
defendants,  and  calls  upon  them  to  answer  on  oath.  He  prays 
that  they  may  be  required  to  disclose  the  name  of  the  holder  of 
the  note;  that  A.  may  be  enjoined  from  selling  the  property; 
that  the  note  may  be  delivered  up  and  cancelled,  and  A.  re- 
quired to  re-convey  the  said  real  estate  to  the  trustee,  to  whom 
the  same  was  conveyed  for  the  benefit  of  B.'s  wife  and  children. 
The  injunction  was  granted,  and  in  June,  1869,  A.  and  C.  an- 
swered ;  C.  said  he  was  a  broker,  and  the  note  was  put  into  his 
hands  for  sale,  and  he  sold  it  to  S.,  and  he  had  no  interest  in  it. 
Both  C.  and  A.  say  they  do  not  believe  there  was  usury  in  the 
transaction ;  it  was  a  sale,  not  a  loan. 

The  cause  stood  upon  the  docket  without  any  move  in  it  until 
December,  1871,  when  B.  and  his  wife  and  seven  infant  children, 
by  B.  as  their  next  friend,  ask  leave  to  file  an  amended  and  sup- 
plemental bill.  In  this  bill  they  are  plaintifi's,  and  S.  is  made  a 
defendant  with  C.  and  A.  They  set  out  the  bill  and  answers ; 
state  a  conveyance  of  the  property  by  B.  to  trustee  for  B.'s  wife 
for  hfe,  remainder  to  the  children.     They  charge  usury  in  the 


Citations  to  the  Code  op  Virginia.  487 

note,  disclaim  any  discovery  from  defendants,  ask  for  an  issue, 
and  if  they  prove  the  usury  that  the  note  may  be  declared  null, 
the  injunction  perpetuated,  and  for  general  relief.  Held :  The 
rule  in  regard  to  amendments  is,  that  they  may  be  made  when 
the  bill  is  defective  in  its  prayer  for  relief,  or  in  the  omission  or 
mistake  of  some  fact  or  circumstance  connected  with  the  sub- 
stance of  the  case,  but  not  forming  the  substance  itself.  The 
plaintiff  will  not  be  permitted  to  abandon  the  entire  ease  made 
by  his  bill  and  make  a  new  and  different  case  by  way  of  amend- 
ment. But  this  rule  has  been  much  trenched  upon,  especially 
in  the  States  and  in  Virginia. 

If  a  plaintiff  is  not  permitted  to  make  a  new  case,  he  may,  by 
his  amendments,  so  alter  the  frame  and  structure  of  his  bill  as  to 
obtain  an  entirely  different  relief  from  that  asked  for  originally. 

If  the  lender  of  money  is  made  a  party  to  a  bill  filed  under 
statute  in  relation  to  money  and  interest,  he  cannot  be  pro- 
ceeded against  under  the  said  statute. 

Upon  the  coming  in  of  the  answers  of  C.  and  A.,  B.  might 
have  dismissed  his  bill,  and  immediately  thereupon  have  filed  a 
new  bill  under  the  statute ;  and  he  might  submit  to  a  dismissal  of 
his  bill  by  the  chancellor,  and  at  once  file  a  bill  against  S.  O. 
and  A.  having  no  interest  in  the  note,  the  case  is  virtually 
ended  as  to  them ;  and  S.  not  having  been  a  party  to  the  original 
bill,  the  answers  of  C.  and  A.  cannot  be  react  for  or  against  him, 
either  under  the  original  or  amended  bill,  and  the  amended  bill 
ma}'  be  filed.  As  S.  was  not  a  party  to  the  original  bill,  and  as 
the  plaintiffs  may  at  once  file  a  new  bill  against  him,  the  delay 
in  tendering  the  amended  bill  cannot  prejudice  his  interests. 
Courts  of  equity  will  allow  amendment  of  the  bill  by  the  intro- 
duction of  new  parties,  plaintiffs  or  defendants,  when  necessary, 
so  that  the  ends  of  justice  may  be  met  or  to  prevent  further  liti- 
gation. As  a  general  rule  this  is  not  matter  of  course,  but 
discretionary  with  the  court.  B.'s  wife  and  children  having  an 
interest  in  the  i*eal  estate  conveyed  in  the  deed,  it  is  proper  to 
amend  the  bill  and  unite  them  as  plaintiffs  with  B. 

In  the  case  of  Meern  vs.  Dulaney  (&  Co.^  88  Va.,  674,  decided 
January  28,  1892,  it  was  held :  Where  the  bill  charges  usury, 
and  prays  that  the  sale  of  the  land  whereon  it  is  secured  be  en- 
joined, and  that  the  usury  be  passed  on  by  a  jury,  and  the 
amount  actually  due  be  ascertained  by  the  court,  and  no  dis- 
covery is  asked  for,  it  is  the  duty  of  the  court  to  direct  the 
issues  to  be  made  up  and  tried  by  the  jury. 

In  the  case  of  Edmund's  Executor  vs.  Bruce^  88  Va.,  1007, 
decided  April  7,  1892,  A  trust  deed  was  executed  to  secure 
a  debt  usurious  under  Code  1873,  Chapter  137,  which  by  Section 
9  thereof  exempts  borrower  from  paying  any  interest,  and  dii'ects 
all  payments  to  be  deducted  from  the  principal.     Injunction  was 


488  Citations  to  the  Code  of  Virginia. 

awarded  to  prevent  sale  under  the  deed.  Held:  By  Code  1887, 
Section  4204,  the  mode  of  procedure  is  changed  to  conform  to 
Section  2822,  which  dispenses  with  a  jury  to  try  the  issue  of 
usury  or  no  usury,  but  the  measure  of  relief  remains  the  same. 

Section  2823. 

In  the  case  of  Spengler  vs.  Snapp,  5  Leigh,  478,  decided 
November,  1834,  it  was  held:  Though  when  one  resorts  to 
equity  for  relief  against  usurious  debt  not  yet  paid,  he  shall  be 
required  to  pay  only  the  principal  advanced  to  him,  without 
even  legal  interest ;  yet,  where  the  debtor  seeks  in  equity  an 
accouDt  of,  and  decree  for  money  already  paid  on  usurious  con- 
tract, the  measure  of  relief  is  the  excess  paid  above  principal 
and  legal  interest,  and  if  his  payments  exceed  principal  and 
legal  interest,  the  surplus,  with  interest,  shall  be  decreed  to 
him. 

See  the  case  of  Mosely  {Trustee)  vs.  Brown  et  als.,  76  Va.,  419, 
ante.  Chapter  130. 

See  the  case  of  Turner  vs.  Turner,  80  Ya.,  379,  ante,  Chapter 
130. 

Section  2824. 

See  the  case  of  Christian  c&  Gunn,  vs.  W or  sham  {Treasurer), 
78  Va.,  100,  ante,  Chapter  130. 

See  the  case  of  Keagy  et  als.  vs.  Trout  et  als.,  85  Va.,  390, 
ante,  Chapter  130. 

In  the  case  of  Ryan  vs.  Krise,  89  Va.,  728,  decided  March 
16,  1893.  Under  Code,  this  Section,  plaintiflf,  who  was  a  judg- 
ment creditor  of  R.  &  Co.,  filed  his  bill  against  the  defendant, 
making  his  allegations  in  accordance  with  the  provisions  of  the 
said  section,  and  praying  that  if  more  than  legal  interest  had 
been  received  by  the  defendant  from  R.  &  Co.,  in  their  dealings 
during  the  five  years  next  theretofore,  the  excess  should  be  ap- 
plied as  far  as  necessary  to  the  satisfaction  of  his  judgment 
against  R.  &  Co.  Held:  Such  excess  should  be  appUed  to 
satisfy  plaintiff's  judgment. 

Section  2825. 

See  the  case  of  Town  of  Danville  vs.  Pace^  25  Grat.,  1,  ante. 
Section  2821. 


TITLE  XL. 
CHAPTER  CXXXI. 

Section  2830. 
In  the  case  of  Marshall's  Administrators  vs.  Cheatham,  88  Va., 
31,  decided  June  18,  1891,  it  was  held :  A  judgment  can  be  set 


I 


Citations  to  the  Code  of  Virginia.  489 

aside  or  altered  only  in  the  manner  prescribed  by  law,  and  by 
the  court  or  officer  invested  with  jurisdiction  to  do  so  by  law. 
Under  neither  act  approved  March  3,  1866  (Sections  1  and  2, 
Chapter  171,  Acts  1865-66),  nor  Code  1873,  Chapter  177,  nor 
otherwise,  is  a  commissioner  who  is  appointed  to  take  an  account 
of  judgment  liens  authorized  to  scale  a  judgment  as  a  Confed- 
erate transaction.  Act  approved  March  25,  1866,  amending  act 
approved  March  3, 1866,  so  far  as  it  authorizes  the  reopening  of 
judgment  rendered  since  passage  of  the  former  act  is  unconsti- 
tutional. 

In  the  case  of  Ratcl'fffe  vs.  Anderson,  31  Grat.,  105,  decided 
November  21,  1878,  it" was  held:  The  act  of  March  25,  1873, 
amending  Section  3  of  the  act  of  March  3,  1866,  so  far  as  it  au- 
thorizes the  reopening  of  a  judgment  rendered  since  said  March 
3,  1866,  is  unconstitutional  and  void,  both  because  it  is  an  in- 
fringement upon  the  powers  of  the  judicial  department  of  the 
government,  and  because  it  impairs  the  obligation  of  contracts. 

CHAPTEK  CXXXII. 

Section  2836. 

In  the  case  of  Beverley's  Trustees  vs.  Smith,  Stuhhlefield,  Gra- 
ham, and  Dixon  s  Executors,  1  Wash.,  296,  decided  at  the  fall 
term  1794,  it  was  held :  Where  the  obligor,  on  a  bond  founded 
on  a  gaming  consideration,  induces  one  to  accept  an  assignment 
for  valuable  consideration  without  disclosing  the  original  con- 
sideration by  promises  of  payment,  the  bond  is  good. 

In  the  case  of  Elliot's  Executors  vs.  Smock,  1  Wash.,  389,  de- 
cided at  the  fall  term,  1794,  it  was  held :  Where  the  obligor,  in 
a  bond  for  a  gaming  consideration,  induced  one  to  accept  an  as- 
signment of  the  bond  for  a  valuable  consideration  and  without 
revealing  the  nature  of  the  original  consideration  and  afterwards 
renewed  the  bond,  he  cannot  plead  the  gaming  laws  in  bar  of 
the  action. 

In  the  case  of  Woodson  vs.  Barret,  2  H.  &  M.,  80,  decided 
March  10,  1808,  it  was  held :  M.,  having  won  money  of  W.  at 
cards,  and  J.  having  won  the  same  sum  of  M.,  the  bond  of  W. 
given  at  the  request  of  M.  to  J.  for  that  sum  is  void  by  the  act 
to  prevent  unlawful  gaming. 

The  assignee  of  a  bond  for  money  won  at  gaming  cannot  re- 
cover though  the  assignment  was  for  a  valuable  consideration, 
and  though  he  had  no  notice  of  the  origin  of  the  bond  unless 
the  obligor  before  the  assignment  induced  him  to  take  the  bond 
by  promising  to  pay  him  the  money. 

In  such  case  a  judgment  having  been  obtained  against  the 
obligor  a  writ  of  elegit  issued  against  his  lands.  A  suit  brought 
by  the  assignee  against  the  sheriff  for  an  error  committed  in 


490  Citations  to  the  Code  of  Virginia. 

executing  such  writ,  and  a  judgment  obtained;  a  court  of  equity 
will  still  relieve  the  obligor  and  the  sheriff  also  on  the  ground 
of  the  turpitude  of  the  original  transaction. 

In  the  case  of  Carter^ s  Executors  vs.  Cutting  et  ux.,  5  Munf., 
223,  decided  November,  19,  1816,  it  was  held:  An  executor 
ought  not  to  be  allowed  a  credit  for  paying  a  debt  of  his  testa- 
tor, appearing  on  the  face  of  the  written  instrument  intended  to 
secure  it,  to  have  been  money  won  at  unlawful  gambling. 

In  the  case  of  Mackin  vs.  Moore,  2  Grat,,  257,  decided  July,. 
1845,  it  was  held :  Money  lent  to  be  bet  on  a  presidential  elec- 
tion cannot  be  recovered  by  suit. 

In  the  case  of  ]Velso?i's  AdTninistrator  vs.  Armstrong  et  als.^ 
5  Grat.,  354,  decided  January  1849,  it  was  held :  On  a  bill 
filed  to  enjoin  a  judgment  on  the  ground  that  the  debt  on  which  it 
was  founded  was  for  money  won  at  cards,  it  being  doubtful  on 
the  evidence  whether  such  was  the  consideration ;  or  if  it  was 
whether  the  plaintiff  in  the  judgment,  who  was  a  transferee  of 
the  debt,  had  not  been  induced  to  take  the  transfer  of  the 
debt  under  the  belief,  induced  by  the  concealment  or  misrep- 
resentation of  the  debtor,  that  the  consideration  of  said  debt 
was  good  and  lawful,  the  court  should  continue  the  injunction 
and  direct  an  issue  to  ascertain  the  facts. 

In  the  case  of  ^yhite  vs.  Washington  s  Executor,  5  Grat.,  645, 
decided  October,  1848,  it  was  held :  In  an  action  at  law  on  a 
promise  founded  on  a  gaming  consideration,  if  the  defendant  is 
surprised  at  the  trial,  and  there  is  a  verdict  and  judgment 
against  him,  he  may  come  into  equity  for  relief,  though  he  may 
make  no  effort  to  obtain  a  new  trial  in  the  common  law  court. 

In  the  case  of  Fletcher  vs.  ^Yatson,  7  Grat.,  1,  decided  May 
4,  1850,  it  was  held :  A  court  of  equity  will  not  lend  its  aid  for 
the  settlement  and  adjustment  of  the  transactions  of  a  partner- 
ship for  gambling.  Nor  will  it  give  relief  to  either  party  against 
the  other,  foiinded  on  transactions  arising  out  of  such  partner- 
ship, whether  for  profits,  losses,  expenses,  contribution,  or  reim- 
bursements. , 

Though  the  pleadings  do  not  show  that  the  transactions 
sought  to  be  settled  and  adjusted  arose  out  of  a  partnership  for 
gambling,  yet  if  this  appears  from  the  evidence  taken  before  the 
commissioner,  who  was  directed  to  settle  the  accounts,  it  is  pro- 
per for  the  court  to  recommit  the  accounts,  and  direct  an  inquiry 
into  the  consideration  on  which  the  claims  of  the  parties  are 
founded. 

One  of  the  partners  qualifies  as  administrator  of  the  other, 
and  there  is  personal  property  belonging  to  the  partnership 
which  had  been  bought  and  nsed  for  the  partnership  purposes. 
The  administrator  cannot  question  the  title  of  his  intestate  to 
his  moiety  of  this  property,  on  the  ground  that  it  was  bought  and 
used  for  gambling  purposes. 


Citations  to  the  Code  of  Virgnia.  491 

The  whole  and  not  a  moiety  of  the  personal  property  belong- 
ing to  the  partnership  must  be  sold,  and  the  proceeds  divided 
between  the  living  partner  and  the  estate  of  the  deceased 
partner. 

Two  partners  own  real  estate  jointly.  One  of  them  dies,  hav- 
ing made  a  will  subjecting  his  whole  estate  to  the  payment  of 
the  debts,  and  having,  subsequent  to  making  the  will,  conveyed 
real  and  personal  estate  of  his  own  to  his  sole  devisee  and  lega- 
tee. The  surviving  partner  qualifies  as  administrator  with  the 
will  annexed,  and  then  files  a  bill  against  the  devisee  and  legatee, 
charging  that  his  testator  was  largely  indebted  to  him,  and  seek- 
ing to  set  aside  the  conveyance  as  without  consideration,  and 
void  as  to  creditors,  and  to  have  his  claims  established.  He 
then  offers  for  sale  his  testator's  undivided  moiety  of  the  real 
estate  owned  by  them  jointly.  Held :  That  having  by  his  bill 
invoked  the  jurisdiction  of  the  court  to  establish  the  validity  of 
his  claims  as  creditor,  and  in  the  validity  of  the  conveyances  he 
thereby  places  his  whole  trust  and  authority  under  the  control 
and  direction  of  the  court,  and  it  was  an  abuse  of  his  fiduciary 
relation  to  proceed  to  sell  the  real  estate  before  an  adjudication 
of  the  matters  in  controversy  between  himself  and  the  devisee 
and  legatee ;  and  the  sale  was  properly  restrained  by  injunction 
at  the  suit  of  the  devisee  and  legatee. 

In  the  case  of  Krake  vs.  Alexander,  86  Va.,  206,  decided  June 
20,  1889,  it  was  held:  There  was  judgment  against  surety  on 
note  for  money  borrowed  to  be  used  as  margins  on  grain  and 
pork  options.  Surety  obtained  money  to  pay  judgment,  secur- 
ing lender  by  trust-deed  on  land.  Lender  was  not  shown  to 
have  had  any  connection  with  or  knowledge  of  the  option.  On 
creditors'  bill  to  take  an  account  of  liens  on  surety's  land.  Held : 
The  trust-deed  to  lender  was  not  void  as  against  other  creditors, 
being  based  on  a  gambling  consideration. 

In  the  case  of  Skipwith  vs.  Strother  et  als.,  3  Rand.,  214,  de- 
cided February  24,  1825,  it  was  held:  A  court  of  equity  has 
jurisdiction  to  relieve  against  a  judgment  founded  on  a  gaining 
debt,  although  the  party  failed  to  defend  himself  at  law,  and 
gives  no  good  reason  for  such  failure.  Qucere:  If  the  de- 
fendant who  won  the  money  can,  by  his  answer,  impeach  the 
contract  so  as  to  affect  the  interests  of  his  assignee  previous  to 
putting  in  the  answer? 

In  such  case,  if  the  defendant  who  won  the  money  admits 
part  of  the  original  contract  to  have  been  on  a  gaming  consid- 
eration, but  asserts  that  the  remainder  is  founded  on  a  lawful 
consideration,  a  court  of  equity  ought  not  to  dissolve  the  in- 
junction as  to  the  part  said  to  be  good,  and  refuse  to  dissolve  as 
to  the  rest,  but  should  enjoin  the  whole,  and  leave  the  case  to  be 
regularly  proceeded  in  as  in  other  cases.     Where  it  is  proved 


492  Citations  to  the  Code  of  Vikginia. 

that  part  of  a  bond  is  on  a  gaming  consideration,  and  other  part 
on  lawful  consideration,  a  court  of  equity  will  relieve  against 
the  part  which  is  vicious,  and  sustain  that  which  is  good,  the 
obHgor  ]5eing  plaintiff  in  equity. 

CHAPTEE  CXXXIIL 

Section  2840. 

The  reference  to  3  Kand.,  410,  is  an  error. 

In  the  case  of  Pagers  Administrator  vs.  Williams  et  ux.,  3 
Munf.,  59,  decided  December  20,  1811,  it  was  held:  A  parol 
agreement  of  an  executor  to  pay  a  legacy  out  of  his  own  estate 
is  not  void  under  the  act  to  prevent  frauds  and  perjuries  if  a 
decree  was  previously  obtained  for  the  legacy  to  be  satisfied  out 
of  certain  property  appointed  by  the  testator ;  for  part  of  which 
property  the  executor  was  accountable  under  the  decree,  and 
responsible  de  honis  propi^s,  and  such  agreement  was  made  in 
consideration  of  forbearance  to  enforce  the  decree. 

In  the  case  of  Buck  cfc  Brander  vs.  Copland^  2  Call,  218  (2d 
edition,  182),  decided  April  30,  1800.  A.  empowered  C.  to  pur- 
chase lands  for  him.  M.  empowered  B.  to  sell  lands  for  him, 
with  directions  to  give  C.  a  refusal.  A.  informs  B.  that  he  and 
C.  are  the  same  person  and  offers  two  shillings,  saying  if  M. 
will  not  take  that  price  he  will  give  more  than  any  other  person. 
B.  promises  C.  and  A.  a  refusal,  but  afterwards,  without  inform- 
ing M.  of  their  offers,  purchases  for  himself.  A  court  of  equity 
will  not  decree  the  benefit  of  this  transaction  to  A.,  but  if  the 
trust  was  proved  would  set  aside  the  sale  in  favor  of  M.,  who 
ought  to  be  made  a  party  to  the  suit.  In  such  a  case,  as  the 
transactions  between  A.,  C,  and  B.  were  not  in  writing,  B.  may 
plead  the  act  to  prevent  frauds  and  perjuries. 

In  the  case  of  ^Yagonnery%.  Gray's  Administrator,  2  H.  &  M., 
603,  decided  October  8, 1808,  it  was  held :  G.  being  indebted  to 
S.,  and  S.  to  W.,  if  G.,  in  consideration  of  his  debt  to  S.,  ver- 
bally promise  to  pay  the  debt  of  S.  to  W.,  but  W.  does  not  there- 
upon discharge  S.,  the  promise  is  a  collateral  undertaking, 
which  is  void  under  the  statute  of  frauds. 

In  the  case  of  Argenhright  vs.  Campbell  and  Wife  3  H.  &  M., 
144,  decided  October,  1808,  it  was  held :  A  parol  promise  by  a 
father  to  his  daughter's  husband  before  the  mamage  is  a  suf- 
ficient consideration  to  sustain  a  written  agreement  after  mar- 
riage, if  such  written  agreement  be  otherwise  sufficient  under 
the  statute  of  frauds.  So,  also,  if  the  marriage  be  had  on  the 
father's  request. 

Under  circumstances,  a  written  instrument  was  declared  to 
be  a  good  bond,  with  collateral  condition,  though  the  obligor's 
name   was    not    signed    opposite    the   seal,   but    between    the 


Citations  to  the  Code  of  Virginia.  493 

penal  part  and  the  condition,  and  the  name  of  the  obligee 
was  signed  at  the  foot  of  the  condition,  with  the  seal  an- 
nexed, both  signatures  being  attested  by  the  same  witnesses. 

A  mistake  in  a  writing  referring  to  another,  may,  in  a  court 
of  equity,  be  corrected  by  the  writing  referred  to. 

A.  being  in  treaty  for  the  purchase  of  a  tract  of  land,  offered 
for  sale  by  J.  C,  was  informed  by  A.  C.  that  he  had  a  claim  to 
it ;  A.  C.  also  inserted  in  a  newspaper  an  advertisement  caution- 
ing all  persons  against  purchasing,  and  caused  to  be  recorded  a 
bond  of  J.  C.  binding  himself  not  to  revoke  a  will,  in  which  he 
devised  the  land  in  question  to  the  wife  of  A.  C,  which  land 
was  also  shown  to  A.  before  he  concluded  the  purchase.  These 
circumstances  were  sufficient  to  constitute  A.  a  purchaser  with 
notice,  notwithstanding,  having  seen  the  will,  he  had  discovered 
a  misrecital  of  it  in  the  bond,  and  was  advised  that  he  might 
safely  purchase. 

Where  husband  and  wife  sue,  in  right  of  the  wife,  for  a  title 
to  a  tract  of  land,  the  conveyance  should  be  decreed  to  be  made 
to  the  wife  only. 

In  the  case  of  Parker  vs.  Carter  et  als.,  4  Munf.,  273,  decided 
November  21,  1814,  it  was  held:  A  promise  in  writing,  not 
under  seal,  by  a  son  to  pay  a  debt  for  his  father,  must  be  con- 
sidered nudum  pactum,  unless  some  consideration  moving  from 
the  creditor  to  the  son,  or  some  agreement  binding  the  creditor 
to  forbearance,  or  the  like,  in  the  event  of  the  assumption  by 
the  son  be  proved. 

In  the  case  of  Cutler  vs.  Hinton,  6  Rand.,  509,  decided  June, 
1828,  it  was  held :  If  C.  authorizes  H.  to  say  to  a  merchant, 
"  that  he,  C,  would  pay  for  any  goods  sold  to  his  son-in-law, 
S.,"  or  to  any  merchant  of  whom  S.  "might  purchase  or  might 
wish  to  purchase  goods"  that  he  would  pay  for  8.  a  certain 
sum ;  this  is  a  collateral  promise,  and  being  verbal,  is  void  under 
the  statute  of  frauds. 

In  such  case  if  the  merchant  charge  the  goods  to  S.,  the  per- 
son to  whom  they  are  delivered,  such  entry  in  his  books  is  (like 
the  admissions  of  a  party)  evidence  against  him,  that  he  is  deal- 
ing with  S.  and  not  with  C,  but  vice  versa,  if  the  entry  be  against 
C,  the  promisor,  such  entry  is  not  evidence  for  the  merchant, 
so  as  to  make  that  an  original  which  would  have  been  otherwise 
a  collateral  promise. 

In  the  case  of  Lolgln  vs.  Henley^  6  Leigh,  85,  decided  Feb- 
ruary, 1835,  it  was  held :  A  promise  of  one  person  to  pay  the 
debt  of  another,  thouijh  in  writing,  must  be  founded  on  con- 
sideration, to  make  it  binding ;  but  under  the  statute  of  frauds 
of  Virginia  the  consideration  need  not  be  expressed  in  the 
written  promise.  It  is  not  necessary  to  make  such  promise 
binding,  that  it  should  be  made  at  the  request  of  the  person 


494  Citations  to  the  Code  of  Virginia. 

whose  debt  the  promisor  assumes,  or  at  the  request  of  the 
creditor. 

In  the  case  of  Beers,  Booth  (&  St.  John  vs.  Spooner,  9  Leigh, 
153,  decided  January,  1838.  A.,  by  contract  in  writing,  not 
sealed,  guarantees  payment  to  B.  of  a  debt  due  him  from  a  third 
person ;  no  consideration  for  the  guaranty  is  expressed  in  the 
contract,  and  none  is  shown  in  proof.  Held:  A  is  not  bound 
by  such  guaranty. 

In  the  case  of  Hopkins  Bro.  c&  Co.  ts.  Riehtwdsoii,  9  Grat., 
485,  decided  November  15,  1852,  it  was  held,  p.  494 :  K.  assigns 
the  bond  of  G.  to  K.  to  enable  K.  to  purchase  goods  on  the 
credit  of  his  assignment,  and  guarantees  the  payment  of  the 
bond,  by  the  endorsement  on  the  back  thereof,  signed  with  his 
name,  and  K.  purchases  goods  of  H.  on  the  credit  of  that  as- 
signment and  guarantee.  This  is  not  an  undertaking  for  the 
debt  of  another  to  which  the  statute  of  frauds  and  perjuries  will 
apply. 

In  the  case  of  Wright  vs.  Smith,  81  Va.,  777,  decided  April 
29,  1886,  it  was  held :  When  the  promise  to  pay  the  debt  of 
another  arises  out  of  some  new  and  original  consideration,  it  is 
not  within  the  statute  of  frauds. 

This  is  the  case  referred  to  as  on  page  783,  which  reference 
is  evidently  an  error. 

In  the  case  of  Henderson  vs.  Hudson,  1  Munf.,  510,  decided 
October  15,  1810,  it  was  held :  The  statute  to  prevent  frauds 
and  pei-juries  applies  to  an  agreement  between  a  purchaser  of 
land  and  a  third  person,  that  such  third  person  should  be  ad- 
mitted as  a  partner  in  the  purchase,  the  proof  of  such  agreement 
being  only  parol  evidence  of  subsequent  declarations  and  ac- 
knowledgments by  the  parties. 

In  the  case  of  HetKs Executor  ys,.  MS' oolridge' s  Executor ,  6  Rand., 
605,  decided  December,  1828,  it  was  held :  There  having  been  a 
written  agreement,  on  the  sale  of  land,  that  the  purchaser  shall 
search  for  coal,  under  the  direction  of  the  vendor  for  a  limited 
period,  and  that  if  within  that  time  coal  could  be  found  in  a 
sufl&cient  body  to  work,  the  purchaser  shall  pay  an  augmented 
price  for  the  land,  a  parol  agreement,  varying  the  written  agree- 
ment by  extending  the  time  within  which  the  search  may  be 
continued  (and  consequently  obliging  the  purchaser  to  pay  the 
augmented  price)  is  within  the  statute  of  frauds,  and  will  not  be 
enforced  by  a  court  of  equity. 

In  the  case  of  Brent  vs.  Green,  6  Leigh,  16,  decided  January, 
1835,  it  was  held :  Sales  at  auction  in  general  are  within  the  statute 
of  frauds. 

In  such  sale  made  by  a  deputy  slieriff,  he  is  the  agent  both 
of  the  vendor  and  the  purchaser,  and  is  setting  down  the  name 
of  the  purchaser  and  the  price,  on  the  schedule  of  the  insol- 


Citations  to  the  Code  o^  Virginia.  495 

vent's  effects,  by  which  he  makes  the  sales,  is  a  sufficient  mem- 
orandum in  writing,  according  to  the  requisition  of  the  statute 
of  frauds ;  and  in  an  action  by  the  high  sheriff  against  the  pur- 
chaser, to  recover  the  purchase-money  of  the  lands  so  sold  by 
the  deputy,  the  deputy  is  a  competent  witness  for  the  plaintiff 
to  prove  the  facts. 

In  the  case  of  D.  &  ^\.  Kyle  vs.  lioherts's  Executor  et  ah.,  6 
Leigh,  495,  decided  December,  1835.  M.,  a  partner  of  the  mer- 
cantile house  of  K.  &  M.,  takes  a  lease  from  R.  to  K.  <fe  M.  of  a 
tenement  for  a  term  of  five  years,  at  a  yearly  rent  of  one  thou- 
sand dollars ;  the  lease  is  by  deed,  signed  and  sealed  by  M.  in 
the  name  of  K.  &  M.,  without  authority  from  his  copartners  to 
execute  any  deed  binding  them;  the  tenement  is  used  and  occu- 
pied for  the  partnership  purposes,  for  two  years  of  the  term, 
and  the  yearly  rents  are  credited  to  the  lessor  on  the  books  of 
the  partnership ;  then  M.  dies,  his  surviving  partners  abandon 
the  tenement ;  the  executor  and  devisee  of  the  lessor  file  a  bill 
in  equity  against  the  surviving  partners  and  the  administratrix 
of  the  deceased  partner,  for  specific  execution  of  the  agreement 
for  the  lease  for  the  use  of  K.  k  M.,  which  the  deed  executed  by 
M.  alone  was  intended  to  evidence,  and  for  a  decree  against  the 
surviving  partners  for  the  rents  for  the  residue  of  the  term, 
without  alleging  that  the  estate  of  M.,  the  deceased  partner,  is 
insolvent.     Held : 

1.  The  case  is  properly  relievable  in  equity. 

2.  Though  the  deed  of  lease,  and  covenants  therein  contained 
executed  by  M.  alone,  in  the  name  of  K.  &  M.,  was  not  obliga- 
tory on  his  partners,  yet  the  agreement  for  the  lease  for  the  use 
of  the  partnership,  of  which  the  deed  was  intended  as  evidence, 
was  binding  on  the  partnership,  and  was  not  extinguished  b}^ 
the  deed,  and  as  the  partnership  took  the  benefit  of  the  lease, 
the  surviving  partner  shall  execute  the  agreement,  and  pay  the 
rents  for  the  whole  term. 

3.  It  seems  the  deed,  signed  by  M.  in  the  name  of  K.  &  M.,  is 
a  sufficient  note  in  writing  of  the  agreement  for  the  lease  to  the 
partnership,  to  take  the  case  out  of  the  statute  of  frauds,  as  to 
them. 

4.  But  no  interest  shall  be  allowed  on  the  balance  of  rents  in 
arrear. 

In  the  case  of  Smith  vs.  Jones,  7  Leigh,  165,  decided  Febru- 
ary, 1836,  it  was  held :  In  sales  at  auction,  the  auctioneer  is  the 
agent  both  of  vendor  and  vendee,  and  his  note  or  entry  on  his 
account  sales  of  the  sale,  the  price,  and  the  purchaser's  name, 
is  sufficient  note  in  writing  of  the  agreement,  signed  by  a  person 
thereto  authorized  by  the  purchaser,  within  the  meaning  of  the 
statute  of  frauds. 

In  the   case    of    Yerhy  vs.   Grigsby,   9  Leigh,   387,  decided 


496  ClTATIONS*TO  THE  CoDE  OF  VIRGINIA.      . 

April,  1838,  it  was  held :  A  person  owning  lands  may  by  parol 
authorize  another  to  make  a  contract  for  the  sale  thereof,  and  if 
a  contract  be  made  under  such  authority,  the  owner  of  the  lands 
may  be  charged  by  virtue  of  the  contract,  provided  there  be  a 
memorandum  thereof  in  writing  signed  by  the  person  authorized 
to  make  it. 

The  signing  by  the  agent  of  his  own  name  is  sufficient.  The 
statute  does  not  make  it  indispensable  that  he  should  sign  the 
name  of  the  party  to  be  charged  therewith. 

When  the  owner  of  land  authorizes  another  to  make  a  con- 
tract for  the  sale  thereof,  the  authority  of  the  agent  to  receive 
so  much  of  the  purchase-money  as  is  to  be  paid  in  hand,  is  a 
necessary  incident  to  the  power  to  sell. 

In  the  case  of  Chapman  vs.  Ross,  12  Leigh,  565,  decided 
August,  1841.  One  Alexander  devised  land  and  mill-seat  to 
Ross,  on  condition  that  he  should  pay  Chapman  two  hundred 
and  fifty  dollars ;  Ross,  apprehending  that  the  mill-seat  would 
be  oversowed  by  a  dam  eleven  feet  six  inches  high,  which  Sum- 
mers claimed  right  to  build  on  the  stream  below,  refused  to  ac- 
cept the  land  and  mill-seat  devised  to  him,  and  to  pay  the  two 
hundred  and  fifty  dollars  to  Chapman,  unless  Chapman  would 
indemnify  him  against  injury  to  mills  he  proposed  to  build  from 
the  erection  by  Summers  of  such  a  dam  below,  and  this  being 
communicated  to  Chapman,  he  said  Summers  had  no  right  to 
erect  such  a  dam,  and  if  Ross  would  accept  the  devise  and  pay 
the  two  hundred  and  fifty  dollars,  he  would  indemnify  Ross 
against  all  injury  he  should  sustain  from  the  erection  of  such  a 
dam  by  Summers ;  whereupon  Ross  accepts  the  devise,  pays  the 
two  hundred  and  fifty  dollars,  and  builds  mills  at  the  mill-seat 
to  him  devised,  and  then  Summers  builds  his  dam,  and  the 
water  overflows  Ross's  mill-seat,  whereby  his  works  are  of  no 
value.  In  assumpsit  by  Ross  against  Chapman  on  the  con- 
tract of  indemnity.     Held  : 

1.  That  the  declaration  setting  out  such  a  contract,  shows 
sufficient  consideration  to  support  the  promise  to  indemnify. 

2.  That  the  contract  is  not  within  the  statute  of  frauds,  and, 
though  merely  verbal,  is  valid  and  binding. 

3.  That  it  is  not  necessary  to  allege  in  the  declaration  notice 
to  defendant  of  injury  resulting  from  Summer's  dam. 

4.  That  to  entitle  Ross  to  recover,  it  is  essential  that  he 
should  prove  that  Summers  had  lawful  right  to  erect  the  dam. 

In  the  case  of  Averett  {Trustee)  et  als.  vs.  Lipscome,  76  Ya.,  404. 

Sale  at  Auction. — Parol  Evidence. — In  suit  by  vendors  of 
land  sold  at  public  auction  against  purchaser  to  compel  him  to 
comply,  joaro^  evidence  is  admissible  to  prove  that  the  written 
memorandum  of  contract  signed  by  the  auctioneer,  does  not  con- 
tain the  stipulation  relied  on  as  a  condition. 


\ 


Citations  to  the  Code  of  Virginia.  497 

In  the  case  of  Brown  vs.  Brovm,  77  Va.,  619,  decided  July 
26,  1883.  Where  two  persons  jointly  purchase  land  under  parol 
contract,  one  of  them  cannot  take  a  conveyance  thereof  to  him- 
self and  thereby  defeat  the  right  of  his  co -purchaser,  on  the 
plea  that  the  contract  between  them  and  their  vendor  was  not 
in  writing.  The  grantee  holds  the  legal  title  in  trust  for  the 
benefit  of  himself  and  his  co-purchaser. 

In  1863,  J.  B.,  Sr.,  conveyed  to  G.  a  tract  of  land,  reserving 
ore  bank,  etc.  In  1866,  he  sold,  but  did  not  convey  to  his  sous, 
J.  B.,  Jr.,  and  A.  B.,  an  adjoining  tract  called  "Furnace,"  and 
the  ore  bank,  etc.;  but  by  oversight  did  not  include  the  ore 
bank,  etc.  These  joint  purchasers  continue  in  joint  possession 
of  all  this  property — A.  B.  admitting  the  joint  interest  of  J.  B., 
Jr.,  until  after  their  father's  death  in  1880,  when  A,  B.,  having 
obtained  a  deed  therefor  in  1872  from  their  father,  claimed  to 
be  the  sole  owner.  Of  this  deed,  J.  B.,  Jr.,  had  no  notice  till 
after  his  father's  death.  A.  B.  sold  the  ore  bank,  etc.,  to  G., 
who  sold  the  same  to  P.,  who  took  possession  and  proceeded 
to  work  on  it.     Held: 

1.  The  statute  of  frauds  does  not  apply  to  this  case. 

2.  If  it  did,  there  was  sufficient  part  performance  to  take  the 
case  out  of  that  statute. 

3.  A.  B.  holds  the  legal  title  in  trust  for  the  benefit  of  him- 
self and  J.  B.,  Jr. 

In  the  case  of  Reynolds  vs.  Necessary  88  Va.,  125,  decided 
June  25,  1891,  it  was  held :  Specific  performance  is  not  a  mat- 
ter of  right,  but  will  be  granted  where  the  parol  agreement  is 
mutual,  certain  and  definite,  and  the  acts  relied  on  are  done  in 
pursuance  of  the  agreement,  and  when  it  has  been  so  far  exe- 
cuted that  refusal  of  full  execution  will  operate  a  fraud,  and  will 
place  the  party  in  a  situation  not  lying  in  compensation. 

In  the  case  of  Anthony  vs.  Lef twitch's  Representative,  3  Rand., 
238,  decided  March,  1825,  it  was  held :  A  specific  execution  will 
not  be  decreed  where  its  operation  would  be  harsh  on  any  per- 
son concerned.  But  if  a  specific  execution  is  refused  for  any 
cause,  the  court  will  decree  compensation  to  a  party  who  may 
have  expended  his  money  on  the  property  of  another  on  the 
faith  of  such  contract. 

In  the  case  of  Payne  vs.  Graves,  5  Leigh,  561,  decided  Decem- 
ber, 1834.  A  purchaser  of  land  is  put  in  possession,  and  pays 
part  of  the  purchase-money  under  the  contract,  but  being  sued 
by  the  vendor  for  the  balance  of  the  purchase-money,  he  de- 
fends himself  on  the  ground  that  the  contract  was  void  by  the 
statute  of  frauds,  and  so  defeats  the  action.  Held :  The  pur- 
chaser, after  thus  disaffirming  and  abandoning  the  contract,  is 
not  entitled  to  specific  execution  thereof  in  equity,  biit  he  is 
entitled  to  have  the  money  he  paid  refunded  to  him.  It  is 
32 


498  Citations  to  the  Code  of  Virginia. 

proper  to  direct  an  account  to  ascertain  what  is  due  to  the  pur- 
chaser for  moneys  paid  by  him  in  part  of  the  purchase-money; 
it  is  proper  also  to  direct  an  account  of  rents  and  profits  of  the 
land  while  in  his  possession ;  and  if  on  such  account  it  appear 
that  there  is  a  balance  due  to  the  defendant,  it  ought  to  be  de- 
creed to  him. 

In  general,  whenever  a  plaintiffs  bill  renders  an  account 
necessary,  the  account  should  be  ordered  for  both  parties,  and 
both  become  actors,  so  that  if  a  balance  be  found  due  the  de- 
fendant, it  ought  to  be  decreed  to  him. 

In  the  case  of  McOotykis  vs.  Easley,  21  Grat.,  23,  decided  June, 
1871,  it  was  held :  In  a  bill  by  the  purchaser  for  the  specific  per- 
formance of  a  parol  contract  for  the  sale  of  land,  the  contract 
stated  in  the  bill,  must  be  sustained  by  the  evidence,  or  the  bill 
will  be  dismissed. 

In  such  a  case,  where  a  different  contract  is  stated  in  the  an- 
swer, and  is  sustained  by  the  evidence,  the  bill  may  be  dis- 
missed, or  the  court  may  in  a  proper  case  give  to  the  plaintiff 
the  election*  to  have  the  contract  as  proved  enforced  or  to  have 
it  rescinded.  Where  one  contract  is  made  for  the  sale  and  pur- 
chase of  both  real  and  personal  property,  and  a  lumping  sum  is 
to  be  paid  for  both,  the  whole  sum  is  charged  upon  the  real 
estate,  and  a  conveyance  of  the  real  estate  will  only  be  decreed 
upon  the  payment  of  the  whole  amount. 

If  the  purchaser  elect  to  have  the  contract  rescinded,  he  is  to 
be  charged  with  the  value  of  the  personal  property  which  he 
has  received,  with  interest  and  with  rents  and  profits  of  the 
real  estate  of  which  he  has  been  in  possession,  and  is  to  be 
credited  with  so  much  of  the  purchase-money  as  he  has  paid 
with  interest,  and  with  the  value  of  permanent  improvements 
made  upon  the  property. 

In  the  case  of  ^Yalker  vs.  Uerring,  21  Grat.,  678,  decided 
January,  1872,  it  was  held :  The  statute  of  fraud  and  perjuries 
applies  to  a  contract  between  a  purchaser  of  real  estate  and  a 
third  person  for  an  interest  in  the  property. 

An  auctioneer  selling  real  estate  at  auction  is  the  agent  of 
both  vendor  and  purchaser,  and  his  writing  at  the  time  the 
name  of  the  purchaser  as  such  to  the  written  terms  of  sale 
binds  the  purchaser. 

An  auctioneer  conducting  a  sale  of  real  estate  writes  the  name 
of  W.  as  the  purchaser.  His  partner,  who  was  not  present  at 
the  sale,  without  communication  with  or  authority  from  H.,  on 
the  day  after  the  sale  writes  the  name  of  H.  as  a  joint  pur- 
chaser with  W.  The  partner  has  no  authority  to  write  the 
name  of  H.,  and  H.  is  not  bound  by  it. 

In  the  case  of  Wright  vs.  Packet,  22  Grat.,  370,  decided 
July,  6,  1872,  it  was  held :  In  a  suit  by  the  purchaser  for  the 


Citations  to  the  Code  of  Virginia.  499 

specific  performance  of  a  parol  agreement  for  the  sale  of  land, 
it  must  appear,  1st.  That  the  parol  agreement  relied  on  is  cer- 
tain and  definite  in  its  terms.  2d.  The  acts  proved  in  the  part 
performance  must  refer  to,  result  from,  or  be  made  in  pursu- 
ance of  the  agreement  proved.  3d.  The  agreement  must  be  so 
far  executed  that  a  refusal  of  full  execution  would  operate  a 
fraud  upon  the  party,  and  place  him  in  a  situation  which  does 
not  lie  in  compensation. 

In  the  case  of  Rhea  vs.  Jordon,  28  Grat.,  678,  decided  July, 
1877,  it  was  held :  Where  a  tract  of  land  was  conveyed  jointly 
to  J.  and  R.,  and  about  the  same  time  J.  agreed  to  sell  his 
moiety  thereof  to  R.  for  certain  price  and  under  and  in  pursuance 
of  said  agreement,  R.  took  and  held  exclusive  and  undisturbed 
possession  of  said  land  for  about  twenty-eight  years,  made  val- 
uable improvements  thereon,  and  paid  to  J.  the  agreed  price 
for  his  moiety.  It  was  held  that  a  bill  filed  by  J.  for  partition 
must  be  dismissed,  and  that  R.  had  acquired  a  full  equitable 
title,  which  the  court  would  enforce  by  compelhng  J.  to  make 
conveyance  of  the  legal  title  also. 

In  the  case  of  J.  W.  Lester  et  als.  vs.  F.  W.  Lester  et  als.,  28 
Grat.,  737,  decided  July,  1877,  it  was  held:  A  parol  contract  be- 
tween a  father  and  his  son,  whereby  the  father  agreed  to  give  to 
the  son  a  certain  tract  of  land  on  the  consideration  that  the  son 
would  support  the  father  and  his  wife  for  their  lives,  is  a  valid 
contract,  and  will  be  enforced  at  the  suit  of  the  children  of  the 
son  after  his  death  against  other  children  of  the  father  who  had 
fraudulently  procured  a  deed  for  the  land  from  the  father  with 
the  knowledge  of  the  said  contract. 

The  principles  on  which  the  specific  execution  of  a  parol  con- 
tract on  the  ground  of  part  performance  will  be  enforced  are : 
When  the  parol  agreement  is  specific  and  definite  in  its  terms, 
the  acts  of  part  performance  refer  to,  result  from,  or  are  done 
in  pursuance  of  the  agreement,  and  the  agreement  has  been  so 
far  executed,  that  to  refuse  to  complete  its  execution  would 
operate  a  fraud  upon  the  party,  and  place  him  in  a  situation 
which  does  not  lie  in  compensation,  and  in  this  case  all  these 
conditions  exist. 

In  the  case  of  Bowman  vs.  Wolford,  80  Va.,  213,  decided 
February  5,  1885.  B.  by  parol  contract  sells  W.  an  acre  of 
woodland  for  thirty  dollars,  to  be  paid  in  three  years  in 
work,  and  puts  him  in  possession.  W.  clears  the  land  and 
puts  on  it  a  dwelling  which  with  his  family  he  continues  to 
occupy,  and  in  work  paid  B.  the  purchase-money.  Held :  W. 
is  entitled  to  a  conveyance  in  specific  performance  of  the  sale  of 
the  land. 

In  the  case  of  Jordan  vs.  Miller  et  als.,  75  Va.,  442,  decided 
March  21,  1881,  it  was  held,  p.  450 :  A  parol  contract  of  part- 


500  Citations  to  the  Code  op  Virginia. 

nership  without  any  fixed  time  for  its  continuance,  and  the  busi- 
ness of  which  may  be  completed  within  a  year,  is  not  void  com- 
ing within  the  statute. 

In  the  case  of  Seddon  vs.  Rosenhauin,  85  Va.,  928,  decided 
March,  28,  1889,  it  was  held :  This  section  contemplates  such 
contracts  as  on  their  face  have  performance  postponed  beyond 
one  year,  and  not  such  as  may  or  may  not  chance  to  be  per- 
formed within  that  period. 

In  the  case  of  Boyd  &  Swepson  vs.  SteinbacJc,  5  Munf.,  305, 
decided  January  17,  1817,  it  was  held:  A  demand  of  slaves  by 
the  lender,  who  thereupon  receives  and  immediately  re-delivers 
them  to  the  loanee,  to  be  held  on  the  same  terms  as  before,  such 
demand  receipt  and  re-delivery  being  in  private,  is  not  sufficient 
to  bar  the  rights  of  creditors. 

In  the  case  of  Land,  etc.  vs.  Jeffries,  etc.,  5  Rand.,  211,  de- 
cided June,  1827,  it  was  held :  Where  the  grantor  of  personal 
property  remains  in  possession  after  an  absolute  conveyance, 
such  conveyance  will  be  deemed  prirna  facie  fraudulent. 

But  such  possession  is  not  conclusive  evidence  of  fraud,  but 
is  open  to  explanation. 

Such  a  conveyance,  though  not  recorded,  is  not  void  under 
the  statute  of  frauds  (even  supposing  it  to  be  a  deed  of  trust) 
against  the  creditor's  of  the  husband,  as  the  statute  only  applies 
to  creditors  of  the  grantor. 

Parol  declarations  of  a  grantor  previous  to  the  execution  of  a 
deed,  and  at  the  very  moment  of  executing  it,  are  admissible  to 
explain  the  intention  with  which  it  was  made. 

In  the  case  of  Lightfoot  vs.  Strother,  9  Leigh,  451,  decided 
July,  1838,  it  was  held :  Under  the  act  to  prevent  frauds  and 
perjuries,  a  loan  of  goods  and  chattels  made  on  parol  to  a 
person  with  whom,  or  those  claiming  under  him,  possession  re- 
mains five  years,  without  demand  made  and  pursued  by  due 
process  of  law  on  the  part  of  the  lender,  is  taken  to  be  fraudu- 
lent as  to  the  creditors  and  purchasers  of  the  person  so  remain- 
ing in  possession. 

If  the  property  be  sold  before  possession  shall  have  remained 
five  years  with  loanee  or  those  claiming  under  him,  the  loan  is 
not  under  the  statute,  taken  to  be  fraudulent  as  to  the  pur- 
chaser. 

When  possession  has  not  at  the  time  of  a  sale  remained  five 
years  with  the  loanee  or  those  claiming  under  him,  the  pur- 
chaser can  have  no  benefit  of  the  statute  of  frauds,  by  reason  of 
his  own  possession  after  the  purchase.  The  circumstance  that 
the  possession  by  the  loanee  before  the  sale  will  together  make 
five  years,  cannot  avail  to  give  a  title  to  the  purchaser. 

In  the  case  of  Miller  vs.  Fletcher  et  als.,  27  Grat.,  403,  de- 
cided April  6,  1876,  it  was  held :  Parol  evidence  is  inadmissible 


Citations  to  the  Code  of  Virginia.  501 

to  prove  that  a  deed  perfect  on  its  face  was  delivered  to  the 
grantee  on  a  condition. 

In  the  case  of  Elliot  vs.  Ilorton^  28  Grat.,  766,  decided  July 
17,  1877,  it  was  held :  In  an  action  for  ejectment  parol  evidence 
is  admissible  to  prove  that  the  calls  for  course  and  distance  in 
a  deed  are  mistaken,  and  do  not  designate  the  true  boundary  of 
the  land  intended  to  be  conveyed. 

In  the  case  of  Jfnhey  vs.  Peters'  Executor  et  ah.,  79  Va.,  60, 
decided  May  1,  1884,  it  was  held :  Statute  of  frauds  has  no 
bearing  on  parol  gift  of  lands,  which  are  founded  on  mei'itorious 
consideration.  If  the  promise  reduced  to  ■writing,  could,  under 
the  circumstances,  be  enforced,  it  may  be  enforced  even  when 
only  parol. 

In  the  case  of  McCroxcell  vs.  Burson,  79  Va.,  290,  decided 
August  7,  1884.  Defendant  employs  plaintiff  by  parol  contract 
to  furnish  labor  and  materials  to  build  a  house,  and  agrees  to 
pay  him  in  money,  merchandise,  and  land.  Plaintiff  incurs  ex- 
pense in  preparing  for  the  job,  when  defendant  refuses  to  let 
him  do  it,  and  plaintiff  brings  his  action,  with  a  count  on  the 
special  contract,  and  with  common  counts  for  labor  done  and 
materials  furnished  at  defendant's  request.  Held :  The  special 
contract  cannot  be  enforced,  because  not  being  in  writing  and 
signed  by  the  defendant,  and  yet  being  intended  to  pass  owner- 
ship of  real  estate  it  is  void.  But  though  the  special  contract  be 
void,  yet  defendant  is  liable  under  a  new  implied  contract  for 
the  work  done  and  materials  furnished. 

In  the  case  of  Barret  vs.  I'orney,  82  Va.,  269  decided  July  8, 
1886,  it  was  held :  Though  specific  performance  of  parol  con- 
tract for  sale  of  land  is  not  decreed  ex  dehitio  justitiai  but  in 
exercise  of  sound  judicial  discretion  under  the  circumstances  of 
the  case ;  yet  it  will  always  be  decreed  where  the  contract  is 
certain  and  definite  in  terms  and  clearly  proven ;  when  the  part- 
performance  was  pursuant  to  the  contract,  and  the  contract  has 
been  so  far  performed  that  a  refusal  of  full  performance  would 
operate  a  fraud  upon  the  party  and  place  him  in  a  situation 
not  admitting  of  compensation  in  damages.  In  such  a  case 
equity  will  not  allow  a  statute  made  to  prevent  fraud  to  work  a 
fraud. 

In  the  case  of  Bruce  and  Wife  vs.  Slemp  et  xtx.  et  als.^  82  Va., 
352,  decided  September  16,  1886,  it  was  held:  Parol  evidence 
is  inadmissible  to  contradict,  vary  or  add  to  a  written  instru- 
ment. But  parol  evidence  is  always  admissible  to  show  that  a 
deed  was  not  delivered  on  the  day  of  its  date  but  on  a  different 
day,  and  to  show  the  real  nature  and  character  of  the  consid- 
eration. 

A  gift  by  the  wife's  father  to  the  husband  during  coverture 
is  deemed  an  advancement  to  the  wife. 


502  Citations  to  the  CoDii  of  Virginia. 

B.  in  his  lifetime  conveyed  land  to  his  daughter's  husband  by 
deed,  reciting  a  valuable  consideration.  Parol  evidence  showed 
that  the  real  nature  and  character  of  the  consideration,  and  the 
design  of  the  grantor,  were  to  create  an  advancement  for  the 
daughter.  Held :  Parol  evidence  was  admissible  for  this  pur- 
pose. 

In  the  case  of  Origgshy  vs.  Oshorn  et  als.,  82  Ya.,  371,  decided 
September  16,  1886,  it  was  held :  A  court  of  equity  will  compel 
the  conveyance  of  the  legal  title  to  land  claimed  under  a  parol 
gift  accompanied  by  possession,  where  the  donee,  induced  by 
the  promise  to  give  it,  has  made  valuable  improvements  on  it. 
But  the  gift  must  be  definite  in  its  terms  and  clearly  proved. 

In  the  case  of  French  vs.  Williams,  82  Va.,  462,  decided  Octo- 
ber 7,  1886,  it  was  held :  Parol  evidence  is  not  admissible  to 
vary,  contradict,  add  to  or  explain  a  written  instrument;  but  in 
case  of  equivocal  written  instrument  the  circumstances  under 
which  they  were  made  or  facts  collateral  thereto,  may  be  ad- 
mitted to  show  the  intention  of  the  parties. 

In  the  case  of  Nicholas  vs.  Austin,  82  Va.,  817,  decided  Jan- 
uary 27,  1887,  it  was  held:  Where  parol  dispensation,  with 
performance  of  agreement  under  seal,  is  supported  by  consider- 
ation, it  will  be  enforced  in  equity. 

In  the  case  of  Wolverton  vs.  Davis,  85  Va.,  64,  decided  May 
24,  1888,  it  was  held :  Under  this  section  a  promise  to  answer 
for  a  debt,  default,  or  misdoing  of  another  must  be  in  writing  in 
order  to  be  enforcible  by  action. 

In  the  case  of  Hubble  vs.  Cole,  85  Va.,  87,  decided  July  26, 
1888,  it  was  held :  Only  in  cases  of  latent  ambiguity  will  parol 
evidence  be  resorted  to  in  aid  of  the  interpretation  of  contracts, 
and  then  not  to  add  or  diminish  what  is  written,  but  to  explain 
the  subject  of  the  instrument. 

In  the  case  of  Hannor  et  als.  vs.  Hounihan  et  als.,  85  Va., 
429,  decided  September  20,  1888,  it  was  held:  This  section 
embraces  anti-nuptial  contracts. 

In  the  case  of  Redd  et  als.  vs.  The  Commonwealth,  85  Va., 
648,  decided  January  17,  1889,  it  was  held :  Where  powers  of 
attorney  to  execute  bonds  in  grantors'  names  as  sureties  for  a 
person  as  county  treasurer  are  in  no  way  ambiguous,  parol 
evidence  is  not  admissible  to  limit  the  power  to  the  bond  re- 
quired of  such  persons  elected  by  vote,  and  to  exclude  the  bond 
required  of  him  when,  having  failed  to  qualify  in  time  after  his 
election,  he  is  appointed  by  the  county  judge  to  fill  the  va- 
cancy. 

In  the  case  of  Skinker  vs.  Armstrong,  86  Va.,  1011,  decided 
September  15,  1890,  it  was  held:  Whether  or  not  promise  to 
pay  another's  debt  is  in  writing  according  to  this  section  is 
matter  of  evidence,  and  need  not  be  stated  in  the  declaration. 


I 


Citations  to  the  Code  of  Virginia.  503 

In  the  case  of  Fudge  vs.  Payne,  86  Va.,  303,  decided  Septem- 
ber 17,  1889,  it  was  held :  It  is  settled  law  that  in  suits  to  re- 
form written  instruments  on  the  ground  of  mutual  mistake,  parol 
evidence  is  always  admissible  to  establish  the  fact  of  a  mistake, 
and  in  what  it  consisted,  and  to  show  how  the  writing  ought  to 
be  corrected  in  order  to  conform  to  the  agreement  which  the 
parties  actually  made.  But  the  mistake  must  be  proved  beyond 
a  reasonable  doubt. 

In  the  case  of  Thomas  vs.  Armstrong  et  als.,  86  Va.,  323,  de- 
cided September  26,  1889,  it  was  held :  Promise  to  leave  a  sup- 
port at  death  of  promisor  in  consideration  of  services  during  the 
balance  of  her  life  to  be  performed  by  promisee.  Held:  Not 
within  Code  1887,  this  section,  clause  7,  prohibiting  an  action 
upon  a  promise  not  to  be  performed  within  a  year  unless  in 
writing. 

In  the  case  of  Dxmsmore  vs.  Lyle,  87  Va.,  391,  decided  Jan- 
uary 29,  1891,  it  was  held :  When  valid  contract  for  sale  of  land 
is  made,  equity  considers  buyer  as  owner,  seller  as  trustee,  and 
as  to  the  money,  vice  versa.  All  applications  for  such  relief  are 
to  court  sound  discretion  regulated  by  its  principles.  Contract 
must  be  reasonably  certain,  legal,  mutual,  upon  valuable  or  meri- 
torious consideration,  and  distinctly  proved  ;  and  applicant  must 
have  been  ready,  prompt  and  eager.  Purchaser  cannot  be  com- 
pelled to  take  defective  title,  but  seller  may  be  to  convey  what 
title  he  has,  and  compensate  for  defect.  This  remedy  falls 
under  statute  of  frauds,  declaring  void  all  contracts  for  land  not 
written  and  signed  by  party  sought  to  be  charged.  No  such 
relief  can  be  had  unless  contract  is  actually  concluded.  Where 
contract  is  embodied  in  formal  document,  executed  by  both  par- 
ties, little  difficulty  can  occur  as  to  whether  it  has  concluded  or 
not.  If  doubtful  whether  concluded  or  not,  the  court  will  re- 
fuse specific  performance,  and  leave  parties  to  their  rights  at 
law. 

In  the  case  of  Edichal  Bullion  Company  vs.  Columbia  Gold- 
Mining  Company,  87  Va.,  641,  decided  April  9,  1891,  it  was 
held  :  Bills  for  specific  performance  of  contracts  for  sale  of  land 
must  show  that  there  were  concluded  between  the  parties  written 
and  signed  contracts  that  are  reasonable,  and  clear,  and  definite, 
both  as  to  terms  and  subject-matter,  and  mutual  in  obligation 
and  remedy;  and  the  same  must  be  proved  as  alleged.  In  the 
case  here,  these  essentials  are  lacking. 

In  the  case  of  Bonsack  Machine  Co.  vs.  Woodrun,  88  Va  ,  512, 
decided  December  10,  1891,  it  was  held:  In  the  absence  of 
fraud  or  mistake,  parol  evidence  cannot  be  admitted  to  shoAV 
that  an  endorsement  made  on  a  sealed  argreement  in  these 
words :  "All  matters  and  things  embraced  in  the  within  contract 
have  been  fully  adjusted  and.  settled,  and  this  contract  is  for 


504  Citations  to  the  Code  of  Virginia. 

value  received,  declared,  ended,  and  settled,"  and  signed  by  the 
parties,  was  intended  only  to  refer  to  money  accounts  between 
those  parties,  and  not  to  include  a  covenant  therein  contained 
on  the  part  of  the  party  paying  the  consideration  for  the  release 
not  to  engage  in  a  certain  business  for  a  certain  period. 

In  the  case  of  Brown  vs.  Pollard,  89  Ya.,  696,  decided  March 
9,  1893,  it  was  held :  At  law  no  contract  for  the  purchase  of  land 
is  binding  on  the  purchaser  unless  it  is  in  writing,  and  signed 
by  him  or  his  agent.  Where  there  is  no  written  contract  for  the 
purchase  of  land,  signed  by  the  purchaser  or  his  agent,  the  con- 
tract being  void  at  law,  he  is  entitled  to  maintain  an  action  of 
detinue  to  recover  back  anything  he  may  have  paid  to  vendor 
on  account  of  such  purchase. 

Section  2841. 

In  the  case  of  Clegg  vs.  Lemessurier,  15  Grat.,  108,  decided 
April,  1859,  it  was  held :  A  writing  for  the  payment  of  money 
or  other  purpose,  which  is  not  required  to  be  by  deed,  having  a 
scroll  at  the  foot  thereof  with  the  word  seal  ^Titten  therein,  but 
which  is  not  recognized  in  the  body  of  the  instrument  as  a  seal, 
is  not  a  sealed  instrument. 

Evidence  aliunde  is  not  admissible  to  prove  that  a  scroll  at 
the  foot  of  a  writing  was  intended  as  a  seal. 

In  the  case  of  Itanldn  vs.  Holer  et  als.,  8  Grat.,  63,  decided 
July  1851.  An  instrument  binding  the  parties  to  pay  a  sum 
of  money,  purports  to  be  under  their  hands  and  seals,  but  it  is 
signed  by  the  parties  with  but  one  seal  to  their  names.  Held : 
Upon  a  demurrer  that  one  action  of  debt  may  be  brought  against 
all  the  parties. 

In  the  case  of  JLeivis's  Executor  vs.  Overhy  {Administrator) ^ 
28  Grat.,  627,  decided  May,  1,  1877,  it  was  held:  A  paper 
which  in  the  body  of  it  says,  "As  witness  my  hand  and  seal," 
has  the  word  "seal"  affixed  to  the  signature  of  the  maker.  It 
is  a  sealed  instrument  within  the  meaning  of  the  statute. 

CHAPTEE  CXXXIV. 

Section  2842. 

_  In  the  case  of  Watkins  vs.  Crouch  c&  Co.,  5  Leigh,  522,  de- 
cided December,  1834,  it  was  held :  In  an  action  against  maker 
and  endorser  of  a  note  negotiable  and  payable  at  the  Farmers 
Bank  of  Virginia,  it  is  not  necessary  to  aver  and  prove  the  pre- 
sentation of  the  note,  and  demand  payment  at  that  bank,  in 
order  to  entitle  plaintiffs  to  recover  of  the  maker,  but  it  is 
necessary  in  order  to  entitle  them  to  recover  against  the  en- 
dorser. 


Citations  to  the  Code  of  Virginia.  505 

The  maker  of  such  note,  before  it  comes  to  maturity,  assigns 
all  his  effects  for  indemnity  of  the  endorser,  as  to  part  of  the 
contents  of  the  note,  and  it  does  not  appear  that  the  effects  as- 
signed are  adequate  to  such  indemnity,  the  indorsers  acceptance 
of  this  assignment  does  not  exempt  the  holders  from  the  duty  of 
making  due  presentation  of  the  note  and  demand  payment  at 
the  place  appointed,  in  respect  to  the  indorser.  Such  note  is 
in  fact  negotiated  at  the  Bank  of  the  United  States,  with  the 
knowledge  and  assent  of  maker  and  endorser,  and  the  note  is 
presented  for  payment  there.  This  is  not  due  presentation  to 
charge  the  endorser,  though  he  consented  to  the  negotiation  .of 
the  note  there,  nor  can  any  usage  of  the  Bank  of  the  United 
States  dispense  with  due  presentation  at  the  Farmers  Bank 
when  it  was  made  payable. 

In  the  case  of  Ar?nistead  vs.  Arinisiead,  10  Leigh,  512  (2d 
edition,  536),  decided  December,  1839.  In  debt  against  the 
makers  of  a  promissory  note  (made  in  Virginia)  negotiable  and 
payable  at  the  United  States  branch  bank  at  Washington  city, 
the  first  count  of  the  declaration,  after  describing  the  note, 
averred  that  the  same  was  duly  presented  at  the  bank  and  pay- 
ment there  required.  At  the  trial  there  being  no  proof  of  the 
presentment  at  the  bank,  the  circuit  court  instructed  the  jury  that 
the  plaintiff  could  not  recover  on  this  count.  The  second  count 
of  the  same  declaration  merely  set  forth  the  note  without  any 
averment  of  presentment  at  the  place,  and  the  defendants  hav- 
ing demurred  thereto,  the  circuit  court  sustained  the  demurrer. 
Held :  The  circuit  court  erred  in  sustaining  the  demurrer,  and 
so  in  its  instruction  to  the  jury.  This  decision  does  not  embrace 
the  case  of  a  note  or  obligation  payable,  in  terms  on  demand  at 
a  particular  place,  without  specification  of  time,  or  payable,  in 
terms  on  demand  at  a  particular  place,  after  the  lapse  of  a  spe- 
cified time.  In  such  cases  it  would  probably  be  held  that  there 
is  no  default  of  the  maker  or  accepter  until  such  demand  be 
made,  and  consequently  that  no  action  would  accrue  to  the 
payee  until  such  demand  should  be  made. 

In  the  cas3  of  Branch  vs.  Commissioners  of  Sinking  tund^  80 
Va.,  427,  decided  April  9,  1885.  Note  payable  to  bearer  has 
been  delivered,  stolen  from  the  owner  and  comes  to  hona  fide 
holder  for  value.  Latter  may  recover  on  it  against  the  maker. 
Secus,  where  the  note  has  not  been  delivered,  or  if  delivered 
has  been  returned  to  maker  and  stolen  from  him.  Two  coupon 
bonds  issued  by  the  State  of  Virginia,  payable  to  bearer,  are 
redeemed  by  the  State,  and  other  bonds  issued  in  their  stead, 
later  the  bonds  were  stolen  from  the  State  treasury,  came  into 
the  hands  of  B.,  a  hona  fide  holder  for  value,  without  notice  of 
the  theft,  and  by  B.  were  presented  to  the  commissioners  of  the 
sinking  fund,  to  be  funded  into  other  bonds  of  the  State.     The 


506  Citations  to  the  Code  of  Virginia. 

commissions  refused,  on  the  grounds  that  the  bonds  had  been 
stolen  from  the  State  treasury.  B.  applied  for  a  mandamus. 
Held :  Mandainus  denied. 

Section  2845. 

In  the  case  of  Walker  vs.  Laverty  (&  Gantley,  6  Munf.,  487, 
decided  January  31,  1820,  it  was  held :  If  the  drawer  of  a  pro- 
tested bill  of  exchange,  being  applied  to  in  behalf  of  the  holder, 
for  payment,  acknowledges  the  debt  to  be  just,  and  promises  to 
pay  it,  saying  nothing  about  his  having  received  notice,  the  holder 
in  an  action  of  debt  upon  the  bill  against  such  drawer  is  not 
bound  to  prove  that  notice  was  given  him  of  the  protest. 

In  the  case  of  Pate  vs.  McClure,  etc.,  4  Rand.,  164,  decided 
March,  1826,  it  was  held :  When  a  bill  of  exchange  returns  pro- 
tested, and  the  drawer,  on  payment  being  demanded,  promises 
to  pay,  he  cannot  afterwards  refuse  to  pay,  on  the  ground  that 
due  notice  was  not  given  of  the  protest. 

In  the  case  of  Farmers  Bank,  etc.  vs.  Yanmeter,  4  Rand.,  553, 
decided  November,  1826,  it  was  held:  Where  a  bill  of  exchange 
is  presented  to  the  drawee,  who  refuses  to  accept  or  pay,  notice 
may  not  be  given  to  the  endorsers,  if  the  bill  was  drawn  and 
endorsed  for  the  accommodation  of  the  drawer,  with  the  know- 
ledge of  the  endorser,  and  there  was  no  expectation  that  the  bill 
would  be  paid  by  the  drawee. 

In  the  case  of  Brown  (&  Sons  vs.  Ferguson.^  4  Leigh,  37,  de- 
cided November,  1832.  Every  party  upon  a  bill  of  exchange,, 
even  (it  seems)  a  party  who  is  a  mere  agent  for  collection,  en- 
dorsing the  bill,  though  only  for  the  purpose  of  collection,  i& 
entitled  to  one  full  day  to  give  notice  to  the  party  next  before 
him  in  succession.  But  the  over-diligence  of  one  party  to  a 
bill  shall  not  supply  the  under-diligence  of  others ;  and  though 
the  drawer  and  endorser  sought  to  be  charged,  in  fact  received 
notice  as  early  as  he  would  have  been  regularly  entitled  to  it, 
yet  the  holder  in  order  to  charge  him  is  bound  to  show  due 
diligence  in  each  and  every  party  through  whose  hands  the  bill 
has  passed;  the  onus prolandi,  in  such  case,  lying  on  the  plain- 
tiff to  prove  due  diligence,  not  on  the  defendant  to  prove  neg- 
ligence. 

A  bill  of  exchange  is  drawn  by  a  creditor  on  his  debtor  pay- 
able sixty  days  after  dnte ;  the  drawee  being  advised  thereof, 
before  acceptance,  writes  to  the  drawer  that  he  will  be  unable 
to  pay  the  bill  at  its  maturity,  whereupon  the  drawer,  by  letter 
to  the  drawee,  authorizes  him,  when  the  bill  approaches  ma- 
turity, to  redraw  on  himself,  in  order  to  raise  funds  to  honor 
the  bill ;  the  drawee  redraws  accordingly,  and  then  the  drawer 
refuses  to  accept  his  bill,  but  no  credit  is  given  by  the  holder 
or  any  other  person  to  the  drawee,  on  the  faith  of  the  drawer's 


Citations  to  the  Code  of  Virginia.  507 

authority  to  him  so  to  redraw.  Held :  The  drawer  has  not,  by 
this  authority  to  the  drawee  to  redraw,  waived  notice  of  dis- 
honor of  his  own  bill,  nor  do  the  facts  constitute  any  excuse  for 
neglect  to  give  such  notice,  nor  is  there  any  assumpsit  to  the 
holder,  but  only  a  promise  to  the  drawee,  which  being  without 
consideration  is  not  binding. 

In  the  case  of  Nelson  vs.  Fotterall,  7  Leigh,  179,  decided  Feb- 
ruary, 1836.  In  assumpsit  by  endorsee  against  drawers,  on  a 
foreign  bill  of  exchange  drawn  by  merchants  in  Yirginia  on  a 
merchant  in  Liverpool,  it  appears  that  the  bill  was  presented  to 
drawee  at  Liverpool  and  acceptance  refused  on  27th  March^ 
and  that  the  bill  was  put  into  a  notary's  hands  for  the  purpose 
of  protest  on  the  28th.  Held :  It  was  properly  left  to  jury  to 
decide  upon  the  evidence  whether  the  refusal  of  the  drawee  to 
accept  was  within  or  after  business  hours  of  the  27th ;  so  that 
the  bill  could  be  put  into  the  notary's  hands  on  that  day,  or  not 
until  the  next  day. 

In  the  case  of  May  vs.  Boisseau  ;  8  Leigh,  164,  decided  March, 
1837.  A  negotiable  note  is  endorsed  by  the  defendant  first, 
and  by  the  plaintiff  after  him,  and  discounted  at  bank  for  the 
accommodation  of  the  maker.  At  its  maturity  a  like  note,  made 
and  endorsed  as  before,  for  the  purpose  of  continuing  the  ac- 
commodation, is  offered  for  discount  at  the  same  bank,  and  by 
the  board  of  directors  is  ordered  to  be  discounted,  but  the 
maker  having  made  no  provision  to  pay  the  discount,  the  pro- 
ceeds are  not  carried  to  the  credit  of  the  maker.  The  first 
note  is  thereupon  protested  for  non-payment,  and  notice  is 
given  the  second  endorser,  but  there  is  a  failure  to  give  due 
notice  to  the  first  endorser.  The  second  note,  though  it  re- 
mains in  bank,  is  treated  as  though  it  had  never  been  dis- 
counted ;  it  is  never  protested,  nor  is  any  notice  of  its  non-pay- 
ment given  to  any  of  the  parties  to  it.  Held :  Upon  these  facts, 
that  no  satisfactory  excuse  is  shown  for  the  omission  to  give 
notice  to  the  first  endorser,  and  he  is  discharged. 

Section  2848. 

In  the  case  of  Brown  vs.  Bank  of  Abingdon,  85  Va.,  95,  decided 
July  26,  1888,  it  wus  held  :  When  he  that  has  to  give  and  he 
that  is  chargeable  with  notice,  reside  within  the  same  postoffice 
delivery,  the  general  rule  is  that  notice  must  be  delivered  to  the 
latter,  or  left  at  his  residence  or  place  of  business. 

In  the  absence  of  a  usage  of  the  bank  known  to  endorser  at 
the  time  of  endorsement,  to  send  through  the  postoffice  notices 
to  endorsers  living  outside  the  town,  but  in  the  vicinity ;  post- 
offices  are  not  places  to  deposit  notices  to  endorsers  except 
when  the  same  are  to  be  transmitted  by  mail  to  another  post- 
office. 


508  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Oorbin  vs.  National  BanJc^  87  Va.,  661,  decided 
April  16,  1891,  it  was  held:  Inlaid  bills  payable  outside  this 
State  and  promisorj  notes  are  not  protested  under  this  Section, 
And  the  notary's  certificate  is  not  evidence  of  their  dishonor. 

Section  2849. 

In  the  case  of  The  Freeman  s  Bank  vs.  liucJcman,  16  Grat., 
126,  decided  September  4,  1860,  it  was  held:  A  note  made 
in  Massachusetts,  payable  at  either  of  the  banking-houses  at 
Wheeling,  Virginia,  is  to  have  its  character  determined  by  the 
law  of  Virginia,  and  is  not  a  negotiable  note.  The  declaration 
avers  that  the  payee  of  a  note  endorsed  and  delivered  it  to  the 
plaintiff,  the  note  not  being  negotiable  but  assignable,  this  is  a 
sufficient  averment  of  its  assignment.  The  declaration  averring 
that  the  note  sued  on  was  made  in  Boston,  and  on  the  same  day 
and  year  was  endorsed  and  delivered  to  the  plaintiff,  a  banking 
corporation,  under  the  laws  of  Massachusetts,  npon  demurrer, 
the  court  will  consider  the  assignment  made  in  Massachusetts, 
where  it  might  legally  be  made. 

In  the  case  of  Mc  Veigh  vs.  Bank  of  the  Old  Dominion,  26 
Grat.,  785,  decided  November  18,  1875,  it  was  held:  A  note 
made  in  June,  1861,  by  a  person  resident  within  the  Confeder- 
ate lines,  and  discounted  by  a  bank  within  the  Union  lines,  is 
illegal  and  void,  unless  it  was  given  in  renewal  of  a  note  made 
before  the  war,  and  by  an  agent  acting  under  authority  con- 
ferred before  the  war. 

In  the  case  of  Slaughter's  vs.  Farland's  Executor,  31  Grat.,  134, 
decided  November  28,  1878,  it  was  held :  The  certificate  of  the 
notary  that  he  gave  notice  of  protest  of  note  for  non-payment 
sent  by  mail  to  the  place  of  residence  of  endorser,  whilst  there 
was  a  mail  communication  between  the  place  of  starting  and 
the  residence,  though  not  by  the  direct  route.  Held:  To  be 
sufficient  evidence  of  notice. 

In  the  case  of  Broun  vs.  Hull,  33  Grat.,  23,  decided  March, 
1880.  B.,  the  payee  of  a  negotiable  note  of  N.,  payable  at  the 
E.  bank,  endorsed  his  name  on  it  and  put  it  in  the  bank  for  col- 
lection. It  was  not  paid  at  maturity,  and  B.  withdrew  the  note, 
and  after  holding  it  for  some  years,  and  after  the  E.  bank  had 
failed  to  exist,  he  transferred  it  to  H.,  writing  over  it  the  words, 
"protest  waived."  H.  failing  to  obtain  payment  of  the  note 
from  N.,  brought  his  action  against  B.  to  hold  him  responsible 
upon  his  endorsement  of  the  note.  Held:  When  B.  put  his 
name  on  the  back  of  the  note  it  was  only  for  its  collection, 
and  he  was  still  the  owner  of  it;  and  when  he  transferred 
the  note  to  H.,  his  endorsement  must  be  considered  as  of  that 
date. 

The  endorsement  of  an  over-due  note  does  not  relate  back  to 


Citations  to  the  Code  of  Vikginia.  SOQ' 

the  date  of  the  note ;  but  as  a  new  and  independent  contract 
only  takes  effect  from  the  time  it  is  made,  and  must  be  deter- 
mined by  the  laws  and  circumstances  then  existing. 

The  E.  bank  having  failed  to  exist  when  B.  transferred  the 
note  to  H.,  it  was  not  at  the  time  of  the  transfer  a  negotiable 
note  payable  at  a  bank,  and  under  the  statute.  B.  was  not  re- 
sponsible as  endorser  of  the  note,  biit  only  as  assignor  or  guar- 
rantor.  As  assignee  of  the  note,  H.,  was  not  under  any  obliga- 
tion to  make  demand  upon  the  maker,  and  give  notice  of  non- 
payment to  B.,  but  he  was  bound  to  exercise  due  diligence  in 
suing  the  maker  and  obtaining  judgment  and  execution  against 
him,  as  a  condition  precedent  to  his  recourse  against  B.,  unless 
the  maker  was  notoriously  insolvent;  and  B.  had  the  right  to 
show  that  H.  had  not  used  due  diligence,  and  that  the  maker 
was  not  notoriously  insolvent;  and  he  had  a  right  to  show  that 
at  the  time  of  the  transfer  of  the  note  of  H.,  the  E.  bank  had 
ceased  to  exist. 

Section  2850. 

In  the  case  of  Nelson  vs.  Fotteral,  7  Leigh,  179,  decided  Feb- 
ruary, 1836,  it  was  held  :  A  protest  of  a  foreign  bill  of  exchange^ 
in  a  foreign  country,  is  proved  by  the  notarial  seal ;  but  the  pro- 
test is  only  prima  facie,  not  conclusive  evidence  of  the  dis- 
honor of  the  bill. 

In  the  case  of  WalJcer  vs.  Tuvner,  2  Grat.,  534,  decided 
January,  1846,  it  was  held :  The  affidavit  of  a  notary  made 
under  the  statute  is  only  evidence  of  the  truth  of  the  facts  stated 
in  the  protest.  If  the  protest  does  not  state  that  notice  of  dis- 
honor of  the  note  was  given  to  the  endorser,  the  affidavit  of  the 
notary  stating  that  the  notice  was  given,  is  not  competent  testi- 
mony. 

In  the  case  of  Stainhack  vs.  The  Bank  of  Yirginia,  11  Grat., 
260,  decided  April,  1854.  The  notarial  protest  of  a  foreign 
bill  of  exchange  states  that  the  notary  took  the  bill  to  the  count- 
ing-house of  the  drawee,  and  there  exhibited  it  to  the  clerk  of 
the  drawee,  and  demanded  acceptance  thereof,  and  that  the 
said  clerk  replied  that  the  same  could  not  be  accepted.  Held  : 
That  the  protest  isi  sufficient  to  bind  the  endorser. 

In  the  case  of  Bayly  {Adininistrator)  vs.  Chuhh,  16  Grat., 
284,  decided  March  5,  1862,  it  was  held :  Notice  of  protest  of  a 
negotiable  note  is  left  at  the  dwelling-house  of  a  member  of 
Congress  in  Washington,  after  the  adjournment  of  Congress, 
and  after  he  has  left  the  city;  and  it  appears  that  he  kept  up 
his  domicile  in  the  district  which  he  represented,  and  it  was  his 
habit  to  leave  Washington  directly  Congress  adjourned.  The 
proof  of  notice  is  not  sufficient. 


610  Citations  to  the  Code  of  Virginia. 

The  reference  to  31  Grat.,  134,  is  to  the  case  cited  supra, 
Section  2849. 

In  the  case  of  Corhin  vs.  National  Bank,  87  Va.,  661,  decided 
April  16,  1891,  it  was  held :  Inlaid  bills  payable  outside  this 
State  and  promissory  notes  are  not  protestable  under  this  sec- 
tion, and  the  notarial  certificate  is  not  evidence  of  their  dis- 
honor. 

Section  2852. 

In  the  case  of  Crawford  vs.  Daigh,  2  Va.  Cases,  521,  decided 
by  the  General  Court,  it  was  held:  An  action  of  debt  may  be 
maintained  on  a  note  in  writing  for  the  payment  of  money  or 
tobacco,  and  the  declaration  need  not  set  out  the  considera- 
tion for  which  it  was  made,  nor  aver  that  it  was  for  value 
received. 

In  the  case  of  Peasley  vs.  Boatwright,  2  Leigh,  195,  decided 
,June,  1830.  Debt  on  an  instrument,  which  is  in  its  form  a 
promissory  note  for  money,  concluding  "witness  the  hands"  of 
the  parties ;  but  scrolls  by  way  of  seals  are  set  to  their  signa- 
tures ;  this  instrument  is  rightly  described  in  the  declaration  as 
a  promissory  note. 

In  debt  on  promissory  note,  held :  Plaintiff  need  not  avet  in 
declaration,  or  prove  consideration,  though  defendant  may  go 
into  evidence  touching  consideration. 

The  reference  to  8  Leigh,  150,  is  an  error. 

In  the  case  of  Beirne,  etc.,  vs.  Dunlap,  8  Leigh,  514,  decided 
July,  1837.  By  a  writing  obligatory,  the  obligors  promise  on  or 
before  a  specified  day,  to  pay  the  obligee  $813.79  in  notes  of 
the  United  States  Bank,  or  either  of  the  Virginia  banks,  and 
debt  is  brought  on  this  writing.  Held :  The  action  cannot  be 
maintained. 

In  the  case  of  Jacknon  vs.  Jackson,  10  Leigh,  448  (2d  edition, 
467),  decided  July,  1839.  Whether  in  Virginia  assumpsit  can 
be  maintained  on  a  promissory  note,  without  averring  a  consid- 
eration in  the  declaration.  Per  Tucker,  P.,  and  Parker,  J.,  the 
action  cannot  be  maintained. 

In  the  case  of  Butcher  vs.  Carlisle,  12  Grat.,  520,  decided 
September  4,  1855.  By  a  bond  dated  the  27th  of  March,  1840, 
the  obligor  bound  himself  to  pay  to  the  obligee  or  order,  on  or 
before  the  25th  of  March,  1842,  a  certain  sum  of  money,  with 
interest  "which  sum  may  be  discharged  in  notes  or  bonds  due 
on  good,  solvent  men  residing  in  the  county  of  R."  This  is  a 
bond  for  the  payment  of  money  for  which  debt  will  lie,  and  it 
is  not  necessary  to  notice  the  provision  as  to  the  mode  of  pay- 
ment in  the  declaration. 

In  the  case  of  Averetfs  Administrator  vs.  Booker,  15  Grat., 
163,  decided  April,  1859,  it  was  held :  The  following  is  not  a 
bill  of  exchange,  nor  does  it  import  a  valuable  consideration,  or 


Citations  to  the  Code  op  Virginia.  511 

a  promise  by  the  drawer  to  the  payee  to  pay  if  the  money  is  not 
paid  by  the  drawee : 

Lynchburg,  Va.,  December  8,  1852. 
$1,080.59. 
The  trustee  of  N.  and  A.  will  pay  to  B.  the  sum  of  one  thou- 
sand and  eighty  dollars  and  fifty-nine  cents,  with  interest  from 
15th  March,  1850,  out  of  money  in  his  hands  belonging  to  me. 

W.  B.  A. 

In  the  case  of  Minnick  vs.  ^^lll^a7n8,  77  Va.,  758,  decided 
October  4,  1883.  Obligor,  by  writing  obligatory  dated  October 
4,  1869,  binds  himself  to  pay  obligee  in  monthly  instalments, 
to  commence  from  that  day,  three  hundred  and  fifty  dollars  in 
either  goods  at  regular  prices  or  in  current  money,  and  at  the 
times  the  amounts  are  payable,  neither  delivers  the  goods  at 
regular  prices,  nor  pays  the  money.  Held  :  There  is  an  obliga- 
tion to  pay  money,  with  the  privilege  to  the  obligor  to  discharge 
the  money  obligation  by  the  delivery  of  the  goods  at  regular 
prices  in  equal  amount  on  or  before  the  time  of  payment,  and 
the  obligor  failing  within  that  time  either  to  pay  the  money  or 
to  deliver  the  goods,  is  liable  to  an  action  of  debt  thereon. 

Section  2853. 

In  the  case  of  Smith  vs.  Segar,  3  H.  &  M.,  394,  decided  March 
22,  1809,  it  was  held :  An  action  of  debt  will  not  lie  against  the 
acceptor  of  a  bill  of  exchange. 

In  the  case  of  Wilson  vs.  Crowdhill,  2  Munf.,  302,  decided 
May  29,  1811,  it  was  held:  An  action  of  debt  will  not  lie  against 
the  acceptor  of  a  bill  of  exchange. 

In  the  case  of  Taylor  vs.  Beck,  3  Eand.,  316,  decided  March 
18,  1825.  Quoere :  Must  an  action  of  debt,  under  the  act  of 
Assembly,  be  brought  against  all  the  parties  to  a  negotiable 
paper,  or  may  it  be  maintained  against  any  intermediate  number? 

In  the  case  of  Tlollingsworth  vs.  Milton,  8  Leigh,  50,  decided 
February,  1837,  it  was  held :  An  action  of  debt  will  lie  for  the 
payee  against  the  acceptor  of  an  order. 

In  the  case  of  Hays  vs.  2%e  Northwestern  Bank  of  Virginia, 
9  Grat.,  127,  decided  August  2,  1852,  it  was  held:  A  note  for  a 
sum  certain,  payable  to  order,  and  negotiable  and  payable  at  a 
bank  out  of  the  State  of  Virginia,  is  a  note  negotiable  at  a  bank 
in  Virginia,  and  therefore,  is  placed  on  the  same  footing  as  for- 
eign bills  of  exchange,  with  the  like  remedy  for  recovery  there- 
of against  the  maker  and  endorsers  jointly,  and  with  the  Hke 
effect  except  as  to  damages. 

In  such  case  demand  and  notice  of  protest  for  non-payment 
is  not  necessary  to  subject  the  maker  of  the  note. 

In  the  case  of  Archer  vs.  Ward,  9  Grat.,  622,  decided  Febru- 
ary 21,  1853,  it  was  held:  In  an  action  upon  a  protested  nego- 


512  Citations  to  the  Code  of  Vikginia. 

tiable  note  against  the  makers  and  endorsers,  the  accidental 
omission  of  the  sum  for  which  the  note  was  given  in  the  descrip- 
tion of  it  in  the  declaration,  when  it  appears  from  the  other 
parts  of  the  declaration,  is  not  ground  for  a  demurrer. 

Section  2854, 
In  the  case  of  TurnhuU  {Executor),  etc.  vs.  Claibornes,  3  Leigh, 
392,  decided  December,  1831.  Kobertson,  executor  of  Cole,  re- 
covers judgment  against  Claiborne,  and  sues  out  execution  there- 
on. Before  the  execution  is  delivered  to  the  sheriff,  Robertson 
dies,  the  execution  being  then  delivered  to  the  sheriff,  he  levies 
it  on  property  of  defendant,  and  takes  a  forthcoming  bond  pay- 
able to  Robertson,  executor  of  Cole.  Held:  The  execution  was 
properly  levied,  though  Robertson  was  dead  before  it  was  de- 
livered, and  the  forthcomiug  bond  was  rightly  taken  to  Robert- 
son, as  executor,  and  was  good. 

Section  2855. 

In  the  case  of  Minges  Executor  vs.  Field's  Executor,  2  Wash., 
175  (1st  edition,  p.  136),  decided  at  October  term,  1795,  it  was 
held :  If  a  bond  be  made  jointly,  without  fraud  or  mistake, 
equity  will  not  charge  the  executor  of  the  surety  who  was  dis- 
charged at  law  by  his  death  in  the  lifetime  of  the  principal. 
Otherwise,  if  the  lending  had  been  to  both. 

In  the  case  of  Richardson  vs.  Johnson,  2  Call,  528  (2d  edition, 
445),  decided  April  20,  1801,  it  was  held :  On  a  joint  bond 
anterior  to  the  act  of  1786,  the  death  of  one  obligor  before  that 
act  discharged  his  executors. 

In  the  case  of  Elliot's  Executors  vs.  Lyell,  3  Call,  268  (2d  edi- 
tion, 234),  decided  October  23,  1802,  it  was  held :  Where  a  joint 
bond  was  given  before  the  act  of  1786,  and  after  that  act  went 
into  operation,  one  of  the  obligors  died,  living  the  other ;  the 
obligation  survived,  and  the  executors  of  the  deceased  were  ex- 
onerated. 

In  the  case  of  Watkin's  Executors  vs.  Tate,  3  Call,  521  (2d  edi- 
tion, 451),  decided  June  28,  1790,  it  was  held :  A  joint  action 
survived  before  the  act  of  1786. 

The  executors  of  two  deceased  obligors  cannot  be  joined  in 
the  same  action. 

In  the  case  of  Chandler's  Executor  vs.  NeaVs  Executor,  2  H. 
&  M.,  124,  decided  March  17,  1808,  it  was  held:  The  surviving 
obligor  in  a  joint  note  made  before  the  act  of  1786,  is  alone  lia- 
ble to  an  action  at  law.  Nor  can  the  note  be  set  up  in  equity 
against  the  representatives  of  the  deceased  obligor,  but  on  the 
ground  of  moral  obligation  antecedently  existing  on  his  part  to 
pay  the  money. 

In  the  case  of  lioane's  Administrators  vs.  Drummonds  Admin- 
istrators, 6  Rand.,  182,  decided  March,  1828,  it  was  held :  When 


Citations  to  the  Code  of  Virginia.  513 

a  joint  judgment  is  obtained  against  two  defendants,  and  one 
dies,  an  action  of  debt  on  the  judgment  lies  against  the  repre- 
sentative of  the  deceased  defendant,  the  statute  being  applicable 
to  joint  judgments. 

In  the  case  of  Sale  vs.  Dishman's  Executors,  3  Leigh,  548, 
decided  March,  1832,  it  was  held :  Though  a  bond  or  covenant 
executed  -b^'  one  partner  of  a  mercantile  house,  in  the  name  of 
of  the  firm,  for  a  debt  of  the  partnership,  is  not  binding  on  his 
co-partner  who  did  not  seal  the  instrument,  yet  the  debt  being 
originally  a  debt  of  the  concern,  both  parties  are  liable  for  it  to 
the  creditor.  And  though  the  surviving  partner  of  a  mercantile 
house  is  alone  liable  at  law  to  the  creditors  of  the  house,  yet  if 
the  surviving  partner  prove  insolvent,  the  estate  of  the  deceased 
partner  is  liable  in  equity  for  the  debts  of  the  partnership. 

In  the  case  of  Galfs  Executors  vs.  CallancCs  Executor,  7  Leigh, 
594,  decided  December,  1836.  A  sum  of  money  is  lent  to  a 
firm  and  the  firm  is  charged  with  it  on  the  partnership  books, 
but  the  partner  with  which  the  transaction  occurs  executes  by 
mistake  a  penal  obligation,  in  the  name  of  the  firm,  under  the 
seal,  instead  of  giving  merely  a  promissory  note.  One  of  the 
partners  dying,  those  who  survived  him,  and  the  executors  of  the 
decedent,  convey  all  the  effects  belonging  and  debts  due  to  the 
firm,  in  trust  to  pay  the  debts  due  from  the  firm ;  then  the  cred- 
itor who  lends  the  money  files  a  bill  in  equity  against  the  sur- 
viving partners,  the  executors  of  the  decedent,  and  the  trustee. 
Held: 

1.  That  although  at  law  there  would  be  no  remedy  on  the 
sealed  obligation  except  against  the  partner  who  executed  it, 
yet  equity  has  jurisdiction  to  correct  the  mistake,  and  hold  all 
the  partners  as  much  bound  as  if  there  were  no  seal. 

2.  That,  regarding  the  debt  as  a  simple  contract  debt  of  the 
firm,  the  estate  of  the  deceased  partner  cannot  be  charged  until 
the  insolvency  of  the  surviving  partners  and  the  deficiency  of 
the  trust-subject  are  first  established. 

In  the  case  of  Jackson  vs.  King's  Representatives,  8  Leigh, 
689,  decided  August,  1837.  The  creditor  of  a  firm  obtains 
judgment  against  the  surviving  partner  who  dies,  and  whose 
administrators  exhaust  the  personal  assets  in  paying  other 
claims.  Then  the  creditor  files  a  bill  in  equity  against  those 
administrators  and  the  heirs  of  the  surviving  partner,  and  the 
representatives  of  the  deceased  partner.  The  bill  seeks  a  bill 
for  the  sale  of  lands  of  which  the  surviving  partner  died  pos- 
sessed, some  of  which  belonged  to  himself  and  some  to  the  firm ; 
and  when  the  funds  from  this  source  shall  be  exhausted,  then 
it  seeks  to  charge  the  representatives  of  the  deceased  partner. 
Held ;  Equity  has  jurisdiction  of  the  case ;  and  the  representa- 
tives of  the  deceased  partner  are  properly  made  defendants. 
33 


514  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Richardson  s  Executor  vs.  JoneSy  12  Grat.,  53, 
decided  January  29,  1855,  it  was  held:  In  an  action  of  debt 
against  two,  one  dies,  and  the  suit  is  revived  against  his  admin- 
istratrix; and  then  she  and  the  other  defendant  give  separate 
confessions  of  judgments,  and  a  separate  judgment  is  entered 
against  each.     This  is  not  error. 

In  the  case  of  Browns  A dministrator  vs.  Johnson,  13  Grat., 
644,  decided  February  4, 1857,  it  was  held  :  The  statute  in  rela- 
tion to  joint  obligations,  though  it  gives  an  action  against  the 
personal  representative  of  a  deceased  joint  obligor,  does  not 
afifect  the  principle  that  the  defeat  of  the  remedy  against  one 
joint  obligor  upon  a  ground  not  personal  to  himself  defeats  it 
as  to  all  the  obligors. 

There  are  two  actions  pending  by  the  same  plaintiff  against 
obligors  in  the  same  bond;  a  deposition  taken  by  the  defendant 
in  one  of  the  cases  can,  under  no  circumstances,  be  competent 
evidence  for  the  defendant  in  the  others. 

A  covenant  by  the  obligee  in  a  bond  with  one  of  three  joint 
obligors,  that  if  after  judgment  against  all  the  parties  the  money 
is  not  paid  by  the  other  two,  he  will  relieve  him  from  the  pay- 
ment of  it  is  not  a  release,  and  will  not  bar  an  action  on  the 
bond  against  all  the  obligors. 

In  the  case  of  Ashhy's  Administrators  vs.  Porter,  26  Grat., 
455,  decided  September  16,  1875,  it  was  held,  p.  465.  Though 
a  member  of  a  firm  be  dead,  and  he  is  largely  indebted  indi- 
vidually as  well  as  a  partner,  his  real  estate  is  equally  liable  for 
his  partnership  debt  as  for  his  individual  debts. 

In  the  case  Robinson  vs.  AUen,  85  Va.,  721,  decided  February 
7,  1889,  it  was  held :  Where  deceased  partner's  separate  assets 
are  insufficient  to  pay  all  his  debts,  those  due  by  him  in  a  fidu- 
ciary capacity  are  to  be  paid  first. 

Section  2856. 

In  the  case  of  ITuill^s  Administrator  vs.  WimMsh  (Adminis- 
trator), 77  Va,,  308,  decided  March  22,  1883,  it  was  held :  Sec- 
tions 2856,  2857,  and  2858  do  not  impair  the  obligation  of 
contracts  existing  at  the  date  of  its  passage,  and  is  not  uncon- 
stitutional as  to  such  contracts. 

In  the  case  of  Pe?in  vs.  Bahnson,  89  Va.,  253,  decided  July  6, 
1892,  it  was  held :  Under  Code,  Sections  2856,  2857,  2859,  a 
creditor  who  has  compromised  with  several  joint  obligors,  and 
received  his  full  share  of  the  obligation,  may  sue  the  other 
obligors  without  making  the  released  obligor  a  party. 

Section  2858. 
In  the  case  of  Lee  vs.  Harlow  {Treasurer)  etc.,  75  Va.,  22,  pp. 
26  and  34,  decided  November  14,  1880.     L.,  holding  coupon 


Citations  to  the  Code  of  Virginia.  515 

bonds  issued  under  the  act  of  March,  1871,  after  the  passage  of 
the  acts  of  March  7  and  March  9,  1872,  received  from  the  audi- 
tor of  the  State  two-thirds  of  the  interest  due  thereon,  which 
payment  was  stamped  upon  the  coupons.  In  1880  he  offered 
to  the  collector  of  the  State  taxes  the  said  coupons  for  the 
one-third  unpaid  theron,  in  payment  of  taxes  due  from  him 
to  the  State.  Held :  L.  is  entitled  to  pay  his  taxes  due  the 
State  in  the  unpaid  one-third  of  said  coupons. 

In  the  case  of  Smith  ei  als.  vs.  Phillips^  77  Va.,  548,  decided 
May  10,  1883.  In  1849  P.  conveyed  his  real  and  personal 
estate  in  trust  to  secure  to  S.  a  debt,  and  in  1865  P.,  then  insol- 
vent, conveyed  to  S.  by  deed,  absolute  on  its  face,  said  estate  in 
consideration  of  said  debt  and  another  debt  of  five  thousand 
six  hundred  and  sixty-eight  dollars,  and  thenceforward  leased 
the  property.  S.  died  intestate  in  1878.  Then  his  representa- 
tives recovered  the  real  estate  by  unlawful  detainer.  P.  got  an 
injunction  on  averment,  that  in  1875  intestate  contracted  that  he 
would  reconvey  if  P  paid  in  twelve  years  twelve  hundred  dol- 
lars, that  thereof  P.  paid  S.  six  hundred  dollars,  and  retained 
possession  in  accordance  with  the  contract,  and  that  he  was 
ready  to  pay  the  balance,  and  prayed  for  specific  performance. 
Defendants  demurred  and  answered.     Held : 

1.  Agreement  to  accept  a  part  of  a  debt  for  the  whole  is 
nuduin  pactum,  and  not  enforcible  in  equity. 

2.  Promise  to  pay  subsisting  debt,  or  even  its  actual  payment, 
is  not  a  consideration  upon  which  a  court  of  equity  can  decree 
specific  performance  of  an  agreoment  for  the  conveyance  of  real 
estate.  ; '     < 

In  the  case  of  Seyinore  vs.  Goodrich,  80  Va.,  303,  decided 
March  12,  1885.  M.  S.  and  others  of  the  firm  of  A.  C.  &  Co., 
owed  two  thousand  dollars  to  G.  W.  agreed  to  pay,  and  paid 
G.  four  hundred  dollars  on  G.'s  promise  to  release  M.  &  S. 
from  the  debt.  Held :  The  agreement  was  binding  on  G.,  and 
M.  and  S.  were  released. 

The  reference  to  9  Va.  Law  Journal,  264  et  seq.,  is  a  reference 
to  an  anonymous  article  utterly  unavailable  as  an  authority  be- 
fore court. 

In  the  case  of  Smith  (&  Wimsat  vs.  Chilton,  84  Va.,  840,  de- 
cided May  3,  1888,  it  was  held :  Creditor  agrees  to  accept  less 
than  amount  due  from  his  debtors  in  satisfaction  of  his  debt. 
He  then  assigns  the  entire  debt.  Of  his  assignment  debtors 
have  notice,  they  permit  the  decree  to  be  entered  against  them 
for  the  entire  debt.  Held :  The  debtors  are  estopped  from  fall- 
ing back  on  the  compromise  and  release. 

Section  2860. 
In  the  case  of  Mackie^s  Executor  vs.  Davis,  2  Wash.,  219,  de- 


516  Citations  to  the  Code  of  Virginia. 

cided  October,  1896,  it  was  held,  p.  223 :  The  assignor  of  a  note 
is  liable  to  the  assignee,  who,  after  having  used  due  diligence 
to  recover  the  money  from  the  obligor  has  failed  to  do  so. 

In  the  case  of  Picket  vs.  Morris,  2  Wash.,  255,  decided,  Octo- 
ber, 1796,  it  was  held :  J.  being  indebted  to  M.,  afterwards 
obtains,  by  assignment,  the  bond  of  M.  to  an  equal  amount. 
He  offers  a  discount  which  M.  declines,  supposing  he  had  an 
equitable  objection  to  the  payment  of  his  bond  in  the  possession 
of  S.  S.  assigns  over  that  bond  to  P.  for  valuable  considei-a- 
tion,  and  without  notice;  under  all  the  circumstances  of  the 
case  the  conduct  of  M.  was  not  a  waiver  of  his  right  to  discount, 
and  he  was  at  liberty  to  offset  the  bond  of  S.  against  his  bond 
assigned  to  P. 

In  the  case  of  Minnis  vs.  Pollard,  1  Call.,  226  (2d  edition, 
197),  decided  May  5,  1798.  A.  acknowledged  in  a  letter  to  B. 
that  he  owes  money  to  C,  and  C.  assigned  the  paper  to  D. 
Held :  It  is  probable  no  action  can  be  maintained  on  it  by  D. 
in  his  own  name.     He  must  bring  suit  in  the  name  of  C. 

In  the  case  of  Craig  vs.  Craig,  1  Call.,  483  (2d  edition,  419), 
decided  April  11,  1799,  it  was  held :  A  bond  with  a  collateral 
condition  was  not  assignable  before  the  act  of  December,  1795, 
and,  therefore,  the  assignee  of  such  a  bond  could  not  maintain 
an  action  upon  it. 

In  the  case  of  Lee  vs.  Love  <&  Co.,  1  Call.,  497  (2d  edition, 
432),  decided  May  13, 1799,  it  was  held  :  The  assignee  of  a  note 
of  hand  must  sue  the  maker  before  he  can  resort  to  the  as- 
signor. 

In  the  case  of  Barhsdale  vs.  Fenwick,  4  Call,  492,  decided 
October,  1803,  it  was  held :  There  is  no  difference  with  respect 
to  the  liability  of  the  assignor  of  a  bond,  whether  the  assign- 
ment was  for  a  past  or  a  present  consideration. 

If  the  assignment  was  for  tobacco  sold,  but  states  that  it  was 
for  value  received,  and  the  declaration  against  the  assignor  pur- 
sues the  assignment,  it  is  sufficient. 

It  is  not  necessary  to  state  in  the  declaration  against  the  as- 
signor that  the  obligor  was  insolvent,  but  it  is  enough  to  set 
forth  the  return  of  nulla  hona,  as  that  is,  prima  facie  evidence  of 
the  inability  of  the  obligor  to  pay. 

The  four  judges  were  aU  of  opinion  that  what  was  due  dili- 
gence on  the  part  of  the  assignee  of  a  bond  depended  upon 
circumstances.  But  two  of  them  held  that  a  speedy  suit  was 
indispensable,  and  two  that  the  situation  of  the  debtors  affairs 
might  make  it  proper  to  postpone  the  suit  and  endeavor  to  ob- 
tain payment  by  negotiation. 

In  the  case  of  Diinlop  vs.  Harris,  5  Call,  16,  decided  April, 
1804,  it  was  held :  The  last  assignee  of  a  promissory  note  can- 


I 


Citations  to  the  Code  of  Virginia.  517 

not  maintain  an  action  against  a  remote  endorser,  there  being 
neither  consideration  or  priority  between  them. 

In  the  case  of  Ilooe  vs.  ^Yilson^  5  Call,  61,  decided  April, 
1S04,  it  was  held :  If  there  be  two  endorsers  of  a  promissory 
note,  and  the  last  endorsee  strikes  out  the  second  endorsement, 
and  fills  up  the  first  to  himself,  he  cannot  upon  nulla  hona 
returned  to  an  execution  against  the  maker  charge  the  first  en- 
dorser, because  there  is  no  priority  between  them. 

In  the  case  of  Bronough  vs.  Scott,  5  Call,  78,  decided  April, 
1804,  it  was  held :  It  is  not  sufficient  for  the  assignee  of  a  pro- 
missory note  to  bring  a  suit  against  the  maker,  which  fails  on 
account  of  informality  in  the  proceedings ;  but  he  must  bring  a 
sufiicient  suit  before  he  can  charge  the  assignor. 

In  the  case  of  Goodal  vs.  Stuart,  2  H.  &  M.,  105,  decided 
March  15,  1808.  A  bond  was  assigned  in  these  words:  For 
value  received,  I  assign  the  within  bonds  to  A.  S.,  and  make  my- 
self responsible  for  the  payment  thereof  should  B.,  the  obligor, 
who  resides  in  G.,  prove  insolvent.  Held  :  This  special  assign- 
ment does  not  vary  the  nature  of  the  undertaking,  nor  affect  the 
assignor's  liabiHty,  as,  without  an  express  stipulation  to  the  con- 
trary, he  would  have  been  so  liable  by  the  mere  operation  of  the 
law. 

In  general,  the  return  of  the  sheriff  of  "  no  effects  "  on  an  ex- 
ecution in  favor  of  an  assignee  of  a  bond  against  the  obligor 
is  sufficient  to  charge  the  assignor,  so  that  in  an  action  against 
him  no  proof  that  the  obhgor  was  not  insolvent  can  be  ad- 
mitted. 

In  the  case  of  Stuhbs  vs.  Burwell,  2  H.  &  M.,  536,  decided 
May,  1808,  it  was  held:  A  bond  may  be  assigned  in  general 
terms  with  a  verbal  agreement  that  the  assignor  shall  not  be  re- 
sponsible, and  thereupon  he  will  not  be  responsible,  even  to  a 
subsequent  assignee  having  no  notice  of  such  agreement. 

In  the  case  of  Mayo  vs.  Giles's  Admninistrators,  1  Munf.,  533, 
decided  March  29,  1810,  it  was  held :  Although  the  assignee  of 
a  bond  with  or  without  notice  takes  it  subject  to  all  the  equity 
of  the  obligor,  yet  such,  equity  must  be  clearly  and  manifestly 
established  by  proof  before  it  shall  affect  an  assignee  without 
notice ;  especially  if  the  obligor,  after  the  assignment,  promise 
payment  of  the  full  amount  of  the  bond  to  the  assignee. 

In  the  case  oi  Stockton  vs.  Cook,  3  Munf.,  68,  decided  January 
15,  1815,  it  was  held:  A  purchaser  of  land  warranted  by  the 
vendor  to  b.e  free  from  all  encumbrances  is  not  precluded  from 
relief  in  equity,  against  his  bond  for  the  purchase-money,  by 
the  circumstance  that  before  he  made  his  purchase  he  was  fully 
appraised  of  the  encumbrance.  The  assignee  of  the  bond  is  not 
in  a  better  situation  than  the  assignor. 

In  the  case  of  ItitcMe  d?  Wales  vs.  Moore,  5  Munf.,  388,  de- 


518  Citations  to  the  Code  of  Virginia. 

cided  February  4,  1817,  it  was  held:  In  an  action  by  the  as- 
signee against  the  maker  of  a  promissory  note,  the  defendant 
cannot  set  off  a  bill  of  exchange  for  which  the  assignor  is 
responsible,  unless  it  appear  that  such  bill  was  his  property  be- 
fore he  received  notice  of  the  assignment. 

In  the  case  of  Harrison's  Administrators  vs.  Raines'  Admin- 
istratrix, 5  Munf.,  456,  decided  March  5, 1818,  it  was  held  :  The 
assignee  of  a  bond  may  recover  of  the  assignor,  after  suing  the 
obligor  and  obtaining  a  judgment  and  execution  with  a  return 
of  nulla  bona,  notwithstanding  his  attorney  directed  that  ap- 
pearance bail  be  not  required  of  the  obligor. 

In  the  case  of  McChmg  vs.  Arhuckle,  6  Munf.,  315,  decided 
March  11,  1819,  it  was  held:  The  assignee  of  a  bond  cannot  re- 
cover against  the  assignor  upon  a  declaration  stating  that  the 
plaintiff  brought  suit  and  obtained  a  judgment  which  was  en- 
joined upon  a  bill  claiming  equitable  discounts  on  account  of 
certain  dealings  and  transactions  between  the  obligor  and  the 
assignor  before  ^e  assignment,  and  that  the  plaintiff  was  there- 
by entirely  debarred  from  collecting  the  debt,  without  stating 
that  the  injunction  was  made  perpetual,  or  what  proceedings 
took  place  thereon. 

In  the  case  of  Brown  vs.  Ross,  6  Munf.,  391,  decided  April 
22,  1819,  it  was  held :  It  is  generally  necessary  for  the  assignee 
of  a  promissory  note  to  sue  the  drawer  in  order  to  charge  the 
endorser,  but  to  this  rule  there  are  exceptions,  where  the  plain- 
tiff can  show  a  discharge  of  the  drawer  under  the  former  bank- 
rupt laws  of  the  United  States,  or  the  insolvent  law  of  this  State, 
or  that  the  drawer  was  actually  insolvent,  so  that  a  suit  would 
have  been  wholly  unavailing. 

In  the  case  of  Johnston  vs.  Hackley,  6  Munf.,  448,  decided 
December  4,  1819,  it  was  held :  In  a  suit  by  the  assignee  against 
the  assignor  of  a  bond,  if  it  appear  that,  after  judgment  against 
the  obligor,  9,,  fieri  facias  was  returned  mdla  hona,  and  that  after- 
wards the  assignee  sued  out  a  capias  ad  satisfaciendum,  upon 
which  the  return  was  "executed  on  the  body  of  the  defendant, 
who  stands  committed  to  the  prison  bounds,  as  per  bond,"  etc., 
the  plaintiff  cannot  recover,  but  must  be  considered  as  having 
brought  this  action  prematurely,  because,  for  aught  that  appears 
in  the  record,  the  obligor  is  still  in  custody  under  the  ca.  sa., 
or  may  have  paid  the  debt. 

In  the  case  of  Garland  vs.  Bicheson,  4  Kand.,  266,  decided 
May,  1826,  it  was  held:  The  assignee  of  a  bond,  under  our 
statute,  does  not  acquire  the  legal  title  to  the  debt,  but  an  equi- 
table right,  which,  by  virtue  of  the  statute,  he  may  assert  at 
law  in  his  own  name,  and  he  has  his  election  to  sue  at  law, 
in  his  own  name,  or  in  that  of  the  original  obligee,  for  his 
benefit. 


Citations  to  the  Code  of  Virginia.  519 

In  the  case  of  Caton  <&  Yeale  vs.  Lenox,  etc.,  5  Rand.,  31,  de- 
cided March,  1827,  it  was  held :  Where  a  note  not  negotiable 
is  endorsed  by  several  persons  in  succession,  the  last  assignee 
could  only  sue  the  maker  and  his  immediate  assignor,  and  not 
a  remote  assignor,  before  the  act  of  assembly  of  1807.  In  gen- 
eral, due  diligence  must  be  used  by  the  assignee  in  bringing 
suit  against  the  maker  before  the  assignor  can  be  sued ;  but 
there  are  many  cases  in  which  no  suit  need  be  brought  against 
the  maker,  as  where  the  note  was  a  forgery,  and  the  assignor 
has  received  the  money  from  the  assignee,  or  where  the  assignor 
practices  a  fraud  upon  the  assignee,  or  where  exchange  notes 
were  given  between  the  maker  and  assignor,  as  a  consideration 
for  each  other,  and  the  note  given  by  the  assignor  has  never 
been  paid  by  him,  nor  sued  upon,  etc. 

In  the  case  of  Coiner  vs.  JIansharger,  4  Leigh,  452,  decided 
April,  1833.  C.  assigns  to  H.  a  bond  of  W.,  payable  on  de- 
mand. If  the  obligor  is  insolvent  at  the  time  of  the  assign- 
ment, it  is  not  necessary  that  the  assignee  should  bring  suit  on 
the  bond  against  him  in  order  to  entitle  himself  to  recourse 
against  the  assignor.  In  such  case  the  assignor  is  immediately 
liable  to  the  assignee  upon  the  contract  of  the  assignment. 

A  bond,  payable  on  demand,  is  assigned  by  the  holder  to  a 
third  person.  The  obligor  is  insolvent  at  the  time  of  the 
assignment,  and  so  continues;  the  assignee  forbears  to  bring 
suit  against  the  obligor,  and  makes  an  arrangement  with  him 
whereby  he  agrees  to  receive  payment  at  a  future  day ;  the  as- 
signor, being  informed  of  the  fact,  though  ignorant  of  the  legal 
effect  thereof  to  discharge  him  from  liability,  sanctions  the 
arrangement,  and  promises  payment  of  the  debt  to  the  assignee. 
Held :  The  assignee  is  bound  by  such  promise  to  pay. 

In  the  case  of  Smith  dc  Richard  vs.  Triplett  db  JSfeal,  4  Leigh, 
590,  decided  November,  1833.  Upon  a  bond  assigned  for  valua- 
ble consideration,  the  assignee  brings  suit  against  the  obligor, 
recovers  judgment,  and  sues  out  a  fi.  fa.,  which  is  levied,  and  a 
forthcoming  bond  taken,  and  that  being  returned  forfeited,  exe- 
cution is  awarded  thereon  against  principal  and  surety,  and  a 
Ji.  fa.  is  sued  out  on  the  forthcoming  bond ;  and  on  this  execu- 
tion the  sheriff  returns  mdla  bona  as  to  the  surety,  but  not  as 
to  the  principal  in  the  forthcoming  bond,  and  gives  plaintiff 
leave  to  amend  his  declaration,  and  to  count  on  the  amended 
return.  Held :  It  was  right  to  permit  the  sheriff  to  so  amend 
his  return,  and  to  permit  the  plaintiffs  to  so  amend  their  declara- 
tion. In  the  action  between  the  assignees  and  assignors,  the 
sheriff's  return  of  nulla  bona  on  the  execution  against  the  obligors 
in  the  forthcoming  bond,  though  amended  after  the  assignee's 
action  and  five  years  after  the  return,  so  as  to  show  the  in- 
solvency of  both,  is  conclusive  evidence  of  such  insolvency.     In 


520  Citations  to  the  Code  of  Virginia. 

such  case  the  insolvency  of  the  debtors  might  be  proved  by 
other  evidence,  but  the  assignees  have  a  right  to  the  conclusive 
evidence  of  the  sheriff's  return. 

It  seems  the  deputy  sheriff,  in  whose  hands  the  execution  on 
the  forthcoming  bond  was  placed,  is  a  competent  witness  to 
prove  the  insolvency  of  the  obligors. 

In  the  case  of  Green  vs.  Ashby,  6  Leigh,  135,  decided  Feb- 
ruary, 1835.  A.,  claiming  the  benefit  of  a  judgment  of  R. 
against  T.,  as  being  transferred  to  him  by  R.  for  payment  of  a 
debt  due  by  R.  to  him,  brings  assumpsit  against  R.'s  attorney 
for  the  money  collected  by  him  on  judgment ;  and  produces  in 
proof  of  his  claim  a  written  paper  signed  by  R.,  authorizing  A. 
to  prosecute  and  recover  the  amount  of  R.'s  claim  against  T. 
Held :  This  imports  a  mere  authority  to  A.  to  collect  the  debt 
for  R. ;  not  an  assignment  or  transfer  thereof  to  A. 

In  the  case  of  Mays  vs.  Callison,  6  Leigh,  230,  decided  April, 
1835,  it  was  held :  A.,  holding  a  bond  executed  by  B.  to  C, 
contracts  to  transfer  this  bond  to  D.  for  valuable  consideration, 
and  to  procure  C.'s  assignment  thereof  to  D.,  without  any  re- 
sponsibility of  or  recourse  against  A.  whatever;  C,  at  A.'s  in- 
stance, accordingly  assigns  the  bond  to  D.,  who  assigns  it  to 
another,  who  brings  a  suit  against  the  obligors  on  the  bond,  in 
which  it  appears  that  the  bond  had  been  discharged  by  pay- 
ment before  it  was  assigned  to  D.,  upon  which  D.  pays  the 
amount  to  his  assignee ;  C,  who  had  made  the  assignment  of 
the  bond  at  A.'s  instance  to  D.,  becomes  insolvent.  In  an  ac- 
tion by  D.  against  A.  to  recover  the  amount  of  him,  it  seems 
the  contract  that  the  bond  should  be  assigned  by  C.  to  D. 
without  recourse  against  A.  did  not  exonerate  A.  from  liability 
to  D.  in  the  case,  which  actually  occurred,  of  the  bond  being 
paid  off  and  discharged  at  the  time  of  the  contract.  The  mean- 
ing and  effect  of  the  contract  was  properly  left  to  the  decision 
of  the  jury  by  the  court. 

In  the  case  of  Drane  vs.  Scholfield,  6  Leigh,  386,  decided 
April,  1835,  it  was  held :  In  an  action  by  an  assignee  against 
an  assignor  of  a  promissory  note,  plaintiff,  to  maintain  his  ac- 
tion, must  show  that  the  maker  was  insolvent  at  the  time  the 
note  was  made  or  the  contents  fell  due,  or  that  he  has  used  due 
diligence  to  recover  from  the  maker,  and  failed. 

In  an  action  by  an  assignee  against  a  remote  assignor  of  a 
bond  or  note,  under  the  statute,  the  plaintiff  may  recover  under 
the  general  counts  for  money  had  and  received,  and  for  money 
paid,  laid  out  and  expended. 

In  the  case  of  Brooks  vs.  Hatch,  6  Leigh,  534,  decided  July 
1835.  M.  holding  certain  salt  wells,  etc.,  in  fee,  contracts  to 
manufacture  and  deliver  to  D.  A.  &  Co.  a  certain  quantity  of 
salt  yearly  for  three  years,  at  certain  stipulated  prices.     To  se- 


Citations  to  the  Code  of  Virginia.  521 

cure  fulfilment  of  the  contract  on  his  part,  M.  makes  a  lease  of  his 
salt  wells,  etc.,  to  D,  A.  &  Co.  for  a  term  of  three  years,  and  it 
is  covenanted  that  until  default  of  performance  of  the  contract, 
M.  and  his  heirs  shall  remain  in  possession  of  the  premises. 
Before  any  salt  is  delivered  by  M.  to  D.  A.  &  Co.  under  the  con- 
tract, M.,  owing  a  debt  to  B.,  draws  an  order  on  D.  A.  &  Co., 
requiring  them  to  pay  this  debt  to  B.  out  of  the  first  moneys  to 
become  due  from  them  to  him  for  salt  to  be  delivered  under  the 
contract,  and  soon  after  dies.  The  order  is  never  presented  to 
D.  A.  &  Co. ;  administration  of  A.'s  estate  is  taken  by  H.,  and  H., 
though  not  one  of  M.'s  heirs,  takes  charge  of  the  salt  wells,  etc., 
manufactures  and  delivers  to  D.  A.  &  Co.  the  quantity  of  salt 
stipulated  by  M.'s  contract,  and  receives  of  the  proceeds  thereof 
more  than  enough  to  pay  the  debt  due  to  B.,  for  which  M.'s 
order  on  D.  A.  &  Co.  was  drawn.     Held: 

1.  M.'s  order  on  D.  A.  &  Co.,  in  favor  of  B.,  was  an  equitable 
assignment  to  B.  pro  tanto  of  these  funds  of  M.,  which  after- 
wards should  be  in  the  hands  of  D.  A.  &  Co.;  but, 

2.  B.  cannot  recover  the  amount  from  H.  in  an  action  of 
ussximpsit  for  money  had  and  received  by  him  to  B.'s  use ;  for 
H.  did  not  receive  the  proceeds  of  the  salt  delivered  to  D.  A.  & 
Co.,  as  administrator  of  M.,  but  only  as  agent  or  bailiff  for  M.'s 
heirs,  who  are  therefore  the  debtors  responsible  to  B.  on  M.'s 
order  in  his  favor;  and 

3.  B.'s  only  remedy  is  a  suit  in  equity  against  M.'s  heirs,  to 
enforce  the  payment  of  the  debt  due  him  out  of  the  pro- 
ceeds of  the  salt,  which  are  profits  of  real  estate  descended,  and 
belong  to  the  heirs. 

In  the  case  of  WoocCs  Administrators  vs.  Duval,  9  Leigh,  6, 
decided  November,  1837,  it  was  held :  A  written  assigment  of  a 
claim  does  not  necessarily  import  a  valuable  consideration,  and 
if  it  be  fairly  inferable  from  the  circumstances  that  the  assign- 
ment was  a  gift,  the  assignor  cannot  be  held  responsible  to  make 
good  the  claim  to  the  immediate  assignee,  or  to  his  assignees  for 
value. 

A.,  having  a  claim  for  debt  in  suit,  assigns  that  claim  to  B.  for 
a  valuable  consideration,  and  writes  a  letter  to  his  attorney  en- 
trusted to  prosecute  and  collect  the  claim,  informing  him  of  the 
assignment,  and  requiring  him  to  pay  the  money  when  collected 
to  the  assignee;  the  attorney  accepts  the  order  payable  when 
collected ;  he  afterwards  collects  the  money,  fails  to  pay  it  over 
to  the  assignee,  and  becomes  insolvent.  Held:  The  assignor 
and  drawer  are  not  liable  to  the  assignee,  unless  he  has  used  due 
diligence  to  recover  the  money  from  the  acceptor  of  the  order, 
and  given  the  assignor  and  drawer  notice  of  the  acceptor's  fail- 
ure to  jjay. 

In  the  case  of  Scates  vs.  Wilson  cfe  Edmunds,  9  Leigh,  473, 


522  Citations  to  the  Code  of  Virginia. 

decided  July,  1838.  A  suit  by  an  assignee  of  a  bond  against 
the  obligor,  being  referred  to  arbitration,  the  arbitrators  find  the 
debt  to  have  been  discharged  by  payments  and  set-offs  against 
the  assignor,  and  make  an  award  in  favor  of  the  obligor,  upon 
which  judgment  is  entered ;  whereupon  an  action  is  brought  by  the 
assignee  against  the  assignor.  Held :  That  though  the  assignor 
is  at  liberty  to  controvert  the  facts  found  by  the  award,  and  show 
that  the  judgment  is  erroneous,  yet,  until  the  contrary  be  shown, 
the  judgment  is  presumed  to  be  right,  and  is  therefore  sufficient 
to  establish  the  liability  of  the  assignor,  and  support  an  assuinp- 
sit  founded  on  such  liability. 

Upon  a  plea  by  the  assignor  that  the  action  against  him  did 
not  accrue  within  five  years,  it  is  found  that  though  the  debt 
originally  due  from  the  obligor  has  been  discharged  by  pay- 
ments to  and  set-offs  against  the  assignor,  yet  the  assignee  did  not 
know  until  after  judgment  in  his  suit  against  the  obligor  that 
nothing  was  due,  and  it  is  also  found  that  five  years  have  not 
elapsed  since  the  judgment.  Held:  That  as  part  of  the  debt 
was  discharged  by  a  set-off,  it  was  only  the  judgment  which 
established  the  set-off  as  payment,  and  until  that  judgment  was 
rendered,  the  action  did  not  accrue  against  the  assignor. 

In  the  case  of  McLaughlin  vs.  Du^ield,  5  Grat.,  133,  decided 
July,  1848.  D.  the  holder  of  a  bond  assigns  it  to  H.  by  the 
following  endorsement  thereon,  "I  assign  the  within  bond  to  H., 
and  agree  not  to  take  any  legal  advantage  of  said  H.  in  the  in- 
dulgence he  may  give."  A  few  days  after,  H.  assigns  the  bond 
to  M.,  who  delays  to  bring  suit  against  the  obligor  until  he  be- 
comes insolvent.  Held :  D.  is  liable  on  his  assignment  not  only 
to  H.,  but  to  M. 

In  the  case  of  DraTte  vs.  Lyons,  9  Grat.,  54,  decided  July  26, 
1852.  D.  and  T.  sell  land  to  S.  and  each  receives  a  part,  and 
takes  S.'s  bonds  for  one-half  the  balance  of  the  purchase-money. 
S.  not  being  able  to  complete  the  contract,  it  is  agreed  between 
the  parties  that  it  shall  be  rescinded,  and  the  land  is  surren- 
dered, and  D.  and  T.  deliver  to  S.  his  bonds,  except  one 
that  T>.  has  assigned  away.  On  this  bond  a  judgment  was 
recovered  by  the  assignee,  and  S.  filed  a  bill  to  enjoin  it,  making 
the  assignee  and  D.  parties.     Held  :  T.  is  not  a  necessary  party. 

S.  is  not  entitled  to  have  judgment  enjoined  as  against  the 
assignee.  The  agreement  to  rescind  the  contract  being  proved, 
S.  is  entitled  to  recover  from  D.  the  amount  of  the  bond  as- 
signed by  D. ;  but  D.  being  liable  as  assignor  of  the  bond,  S.  is 
not  to  collect  it  until  he  shall  have  paid  off  the  judgment,  or  D. 
is  otherwise  released  from  his  liability  as  assignor. 

In  the  case  of  Thompson  vs.  Govan,  9  Grat.,  695,  decided 
March  7,  1853,  it  was  held :  Assignee  delays  for  two  years  to  sue 
the  maker  of  the  note.     In  the  absence  of  proof  of  the  maker's 


Citations  to  the  Code  of  Virginia.  523 

insolvency  at  the  time  or  shortly  after  the  note  fell  due,  he  can- 
not recover  against  the  assignor. 

In  the  case  of  Peay  vs.  Morrisoiis  Executors,  10  Grat.,  149, 
decided  July,  1853.  In  March,  1836,  C.  executed  his  bond  to 
P.  for  twelve  thousand  dollars,  payable  on  the  24th  of  February, 
1841,  with  interest  from  the  1st  of  April,  1836,  payable  semi- 
annually, and  executed  a  deed  of  trust  to  secure  it,  which  might 
be  enforced  upon  the  failure  of  C.  to  pay  the  principal  when 
5ue,  or  to  pay  the  semi-annual  interest.  In  July,  1836,  P.  pur- 
chased real  estate  from  M.,  and  paid  in  part  cash,  and  for  the 
balance  assigned  to  M.  the  bond  of  C,  and  executed  a  mortgage 
on  the  property,  with  condition  that  if  M.  failed  to  collect  from 
C.  the  bond  and  interest,  or  any  part  of  it,  and  P.  paid  it,  then 
the  deed  to  be  void.  The  interest  was  regularly  paid  on  C.'s 
bond  until  October,  1839,  and  in  September,  1840,  the  interest 
was  again  paid.  In  February,  1841,  C.  was  insolvent.  The 
trust  property  was  sold  in  February,  1844,  and  soon  after  M. 
proceeded  to  foreclose  the  mortgage,  and  the  property  was  sold 
in  July,  1845,  leaving  a  large  balance  still  due  M.  Held :  In 
absence  of  proof  of  an  express  agreement  to  the  contrary,  the 
assignment  of  P.  to  M.  imports  a  guarantee  that  M.  shall  receive 
the  full  amount  of  the  bond  of  C,  and  the  right  of  M.  to  resort 
to  P.  for  any  part  thereof  which  he  should  fail  to  collect  from 
C.  with  the  exercise  of  due  diligence. 

The  sale  of  the  trust  and  mortgaged  property  did  not  impair 
the  right  of  M.  to  hold  P.  responsible  for  the  balance  of  the 
debt. 

The  delay  in  the  sale  of  the  trust  property  not  appearing  to 
have  been  occasioned  by  the  active  agency  of  M.,  or  that  he 
can  be  regarded  as  assenting  to  it  in  any  other  sense  than  might 
legally  be  imputed  to  P.,  and  it  not  appearing  that  the  value  of 
the  security  was  diminished  by  the  delay,  that  delay  cannot  dis- 
charge P.  from  his  liability  from  his  assignment. 

C.  having  become  insolvent  before  the  bond  was  due,  a  suit 
against  him  would  have  been  unavailing,  and  was  therefore  un- 
necessary to  establish  the  right  of  M.  to  recover  of  P.  And  it 
does  not  appear  from  any  circumstances  in  the  case  that  a  sale 
of  the  trust  property  for  the  failure  to  pay  the  semi-annual  in- 
terest would  have  been  judicious  or  expedient,  still  less  that  it 
was  necessary  to  entitle  M.  to  hold  P.  liable  on  his  assign- 
ment. 

In  the  case  of  Davis  vs.  Miller,  14  Grat.,  1,  decided  April  11, 
1857,  it  was  held :  When  an  overdue  note  is  transferred,  the 
holder  takes  it  subject  to  all  the  defences  and  equities  to  which 
it  was  subject  in  the  hands  of  his  immediate  endorser,  whether 
or  not  he  has  any  notice  thereof ;  except  that  an  accommoda- 
tion note  in  his  hands  is  not  therefore  invalid.     A  set-off  as  be- 


524  Citations  to  the  Code  of  Vieginia. 

tween  the  maker  and  the  payee,  acquired  after  the  transfer  of  an 
over-due  note,  though  acquired  without  notice  of  the  transfer  of 
the  note,  cannot  be  set-off  against  the  holder. 

By  the  endorsement  of  negotiable  notes,  though  after  due,  the 
legal  title  passes  without  notice  to  the  maker.  But  in  the  case  of 
transfers  of  choses  in  action  not  negotiable,  only  the  equitable  title 
passes,  and  the  maker  may  make  payments  to  the  payee  or  obligee 
until  he  has  notice  of  the  transfer.  The  statute  in  relation  to 
suits  by  assignees  does  not  apply  to  negotiable  paper,  thougE 
such  paper  has  been  transferred  after  due. 

In  the  case  of  leage  vs.  Bossieux,  15  Grat.,  83,  decided  Jan- 
uary, 1859,  it  was  held,  p.  93 :  Upon  the  statute.  Code,  Chapter 
119,  Section  2,  p.  510,  creating  the  mechanic's  lien  upon  the 
building,  the  suit  may  be  brought  within  six  months  from  the 
time  the  building  is  finished  to  enforce  the  lien  as  to  the  instal- 
ments of  the  contract  price  due ;  and  though  some  of  them  are 
not  due  and  payable  at  the  time  tlie  suit  is  commenced,  the 
court  may  in  its  decree  provide  for  them. 

The  contract  and  lien  under  the  statute  may  be  assigned,  and 
the  assignee  may  enforce  the  lien  in  the  same  mode  that  the 
mechanic  might  do. 

By  the  contract  for  building  a  house,  the  builder  is  to  furnish 
the  materials  and  to  build  the  house  in  a  workmanlike  manner, 
and  the  price  is  to  be  fixed  by  referees  chosen  by  the  parties. 
Soon  after  the  work  is  finished  it  is  valued,  and  the  price  fixed ; 
but  afterwards  defects  become  apparent  by  the  shrinking  of  the 
timber,  which  shows  that  the  work  was  executed  in  a  very  de- 
fective and  unworkmanlike  manner.  The  valuation  does  not 
conclude  the  owner  of  the  house,  but  he  is  entitled  to  compen- 
sation for  the  defects;  and  in  a  suit  by  the  assignee  of  the 
builder  to  enforce  the  lien  for  the  price  of  building  the  house, 
the  owner  will  only  be  required  to  pay  what  the  Ijuilding  was 
really  worth. 

A  building  fund  company  agrees  to  advance  to  one  of  its 
members  money  to  build  a  house  on  the  lot  owned  by  him,  and 
advances  a  part  of  the  money,  and  takes  a  lien  upon  the  lot  and 
the  buildings  which  may  be  erected  upon  it  to  secure  the  ad- 
vances made  and  to  be  made.  The  member  then  makes  a  con- 
tract for  the  building  of  a  house  on  the  lot,  with  a  mechanic, 
who,  to  raise  money  faster  than  it  can  be  gotten  from  the 
company,  assigns  the  contract  to  a  person  who  undertakes  to  ad- 
vance the  money,  and  the  contract  is  recorded;  the  company 
advances  money  from  time  to  time,  as  it  had  agreed  to  do,  which 
is  paid  to  the  assignee  in  part  satisfaction  of  his  advances  to 
the  mechanic,  with  a  knowledge  on  his  part  that  it  comes  from 
the  company,  and  that  company  claims  priority  of  lien  upon 
the  property.     The  company  is  entitled  to   priority  over  the 


Citations  to  the  Code  of  Virginia.  525 

mechanic's  lien  for  the  advances  made  after  the  contract  was 
recorded,  as  well  as  for  the  advances  made  before. 

In  the  case  of  Freeman  s  Bank  vs.  Rxickman,  16  Grat.,  126, 
decided  September  4,  1860,  it  was  held,  p.  129  :  The  declara- 
tion avers  that  the  payee  of  a  note  endorsed  and  delivered  it  to 
the  plaintiff;  the  note  not  being  negotiable,  but  assignable,  this 
is  a  sufficient  averment  of  its  assignment. 

The  declaration  averring  that  the  note  sued  on  was  made  in 
Boston,  and  on  the  same  day  and  year  was  endorsed  and  deliv- 
ered to  the  plaintiff,  a  banking  corporation  under  the  laws  of 
Massachusetts,  upon  demurrer  the  court  will  consider  the 
assignment  made  in  Massachusetts  when  it  might  legally  be 
made. 

In  the  case  of  Arents  vs.  The  Commonwealth,  18  Grat.,  750, 
decided  April,  1868,  it  was  held :  The  acts  of  March  20, 1848,  and 
of  March  29, 1851,  authorized  the  guaranty  of  the  State  upon  the 
bonds  of  the  city  of  Wheeling,  to  pay  her  subscription  to  the 
stock  of  the  Baltimore  &  Ohio  Railroad  Company,  payable  to 
bearer,  and  transferable  by  delivery,  though  not  payable  to  the 
company,  but  to  a  third  person. 

If  the  contract  of  a  guaranty  of  a  coupon  bond,  transferable 
by  delivery,  is  not  negotiable  at  law,  along  with  the  bonds 
and  coupons,  it  is  assignable  in  equity,  and  an  interest  in  it 
passes  in  equity  to  each  successive  holder  of  the  bond  or  cou- 
pon. 

In  the  case  of  Mayds  Executor  vs.  CarringtonHs  Executor  et 
als.,  19  Grat.,  74,  decided  February  23,  1869,  it  was  held:  In  a 
biU  by  the  assignee  against  the  obligor  and  assignor,  the  assign- 
ment is  not  questioned  by  the  assignor.  There  is  no  necessity 
for  proving  it  as  against  the  obligor. 

If  the  assignment  of  a  debt  is  without  recourse,  it  is  doubt- 
ful whether  it  will  carry  with  it  an  equitable  lien  for  the  debt ; 
but  if  the  assignment  is  general,  the  equitable  lien  passes  with  it. 

In  the  case  of  Wilson^ s  Administrator  vs.  Barclay's  Executor, 
22  Grat.,  534,  decided  August  28,  1872.  M.,  P.,  W.  and  B.  were 
merchants  and  partners,  doing  business  in  Lewisburg,  Green- 
brier county,  W.  and  B.  living  in  Rockbridge.  In  1843  the 
partnership  terminated,  and  the  firm  assigned  to  B.,  as  a  part  of 
his  in-put  capital,  the  bonds  of  D.  for  one  thousand  and  thirty- 
eight  dollars,  bearing  date  in  1842,  and  secured  by  deed  of 
trust  on  real  and  personal  property.  In  1843,  E.  and  C,  cred- 
itors of  D.,  by  judgment  rendered  before  the  execution  of  the 
deed,  filed  their  bill  to  subject  the  real  estate  of  D.  to  the  pay- 
ment of  their  judgment.  B.  was  made  a  defendant  in  this  suit, 
but  did  not  answer.  He  retained  the  bonds  in  his  possession 
till  1848,  and  then  sent  them  with  other  papers  to  an  attorney 
for  collection.     In  1843  there  was  a  decree  in  the  suit  of  E.  and 


526  Citations  to  the  Code  of  Virginia. 

C.  for  a  sale  of  part  of  D.'s  land,  but  it  was  never  executed. 
At  the  May  term,  1849,  N.,  another  judgment-creditor  of  D., 
made  himself  a  party  in  the  suit,  and  at  the  October  term  there 
was  a  decree  for  the  sale  of  all  the  property,  real  and  personal, 
of  D.  The  sale  was  made  in  1850,  the  personal  property  bring- 
ing but  $26.50,  though  it  was  in  proof  that  when  the  deed  was 
made  there  was  a  tavern  on  the  land,  well  furnished  with  furni- 
ture. In  1851  there  was  a  final  decree  applying  the  proceeds 
of  the  sale  of  the  property,  first,  to  pay  the  debt  of  E.  and  C. ; 
second,  the  debt  of  N.,  and  third,  the  debt  of  B.  The  proceeds 
of  sale  satisfied  the  debts  of  E.  and  C.  and  of  N.,  but  there  was 
nothing  left  to  be  applied  to  the  debt  of  B.  except  the  proceeds  of 
the  personal  property.    At  the  time  of  the  assignment  the  debt  of 

D.  was  considered  good,  but  he  seems  to  have  had  no  property 
except  what  was  embraced  in  the  deed  of  trust.  In  1860  the 
administrator  of  B.  filed  his  bill  against  the  administrator  and 
heirs  of  W.  to  recover  W.'s  proportion  of  said  bonds  assigned 
to  B.  Held :  The  negligence  of  B.  in  having  the  suit  prose- 
cuted, whereby  interest  on  the  prior  debts  was  accumulated  and 
the  property  deteriorated,  bars  B.'s  administrator  from  any  re- 
covery against  the  estate  of  W.  The  negligence  in  enforcing  the 
deed  of  trust  by  the  sale  of  personal  property,  by  which  it  was 
allowed  to  be  lost  to  the  trust,  bars  his  recovery.  B.  not  having 
done  anything  to  recover  the  debt  till  1848,  and  his  administra- 
tor not  having  brought  his  suit  until  1860,  it  is  upon  him  to 
show  clearly  that  the  money  could  not  have  been  made  out  of 
D.'s  property.  If  D.  was  insolvent  at  the  time  of  the  assign- 
ment of  the  bonds,  or  when  he  became  so  afterwards,  if  B. 
relied  upon  D.'s  insolvency  as  excusing  B.'s  prosecution  of  his 
suit  against  D.,  B.  should,  as  soon  as  he  ascertained  the  fact, 
have  given  notice  to  his  assignors,  and  should  have  offered  to 
return  the  bonds ;  and  not  having  done  this,  he  cannot  recover 
against  them. 

In  the  case  of  Edmunds  (Assignee)  vs.  Ilarpar,  31  Grat.,  637, 
decided  March,  1870.  S.  as  principal,  and  H.  as  his  surety, 
executed  their  bond  to  E.  E.  owes  S.  and  N.,  partners  on  ac- 
count, and  N.  assigns  to  S.  E.  becomes  bankrupt,  and  S.  proves 
the  account  before  the  register  in  bankruptcy,  and  he  afterwards 
becomes  bankrupt.  The  assignee  in  bankruptcy  of  E.  sues  H. 
on  the  bond,  and  H.  pleads  the  account  as  a  set-off.  Held: 
Under  the  Virginia  statute  of  set-off,  Code  of  1873,  Chapter 
168,  Section  4,  the  account  is  a  valid  set-off  for  H.  in  the  ac- 
tion against  him  on  the  bond. 

In  the  case  of  Welsh  vs.  Ebersole,  75  Va.,  651,  decided  Septem- 
ber, 1881.  In  an  action  of  assumpsit  to  recover  of  the  defendant 
the  amount  of  a  bond  executed  by  N.  W.  S.  to  the  defendant, 
transferred  to  the  plaintiff,  defendant's  name  endorsed  thereon 


Citations  to  the  Code  of  Virginia.  527 

in  blank,  the  declaration  contained  three  counts.  In  the  first 
count  tlie  plaintiff  declared  on  the  bond  as  assigned  to  him  by 
the  defendant,  for  value  received.  The  second  count  alleged 
that  N.  W.  S.  was  indebted  to  the  plaintiff  in  the  sum  of  one 
thousand  nine  hundred  dollars,  part  of  the  purchase-money  for 
a  tract  of  land  sold  by  the  plaintiff  to  said  N.  W.  S. ;  that  N.  W. 
S.  preferred  to  give  personal  security  for  the  debt  rather  than  a 
lien  on  the  land,  and  offered  the  defendant  as  a  guarantor,  who, 
in  consideration  of  the  premises,  and  the  fact  that  the  plaintiff 
would  not  reserve  such  lien,  guaranteed  the  payment  of  said 
debt,  which  guaranty  is  evidenced  by  the  bond  of  said  N.  "W. 
S.  payable  to  the  defendant  and  endorsed  by  the  defendant  to 
the  plaintiff  by  writing  his  name  in  blank  on  the  back  of  the 
bond  ;  that  the  plaintiff  obtained  judgment  on  the  bond  against 
said  N.  "VV.  S.,  sued  out  execution  thereon,  which  was  unavailing, 
etc.  The  defendant  filed  a  general  demurrer  to  the  declaration 
and  to  each  count  therein,  and  the  court  overruled  the  demurrer 
to  the  declaration  and  to  the  first  count,  and  sustained  the  de- 
murrer to  the  second  and  third  counts.  Held:  That  the  court 
erred  in  sustaining  the  demurrer  to  the  second  and  third  counts. 

Assuming,  as  must  be  done  on  a  demurrer,  the  truth  of  every 
material  averment  of  the  declaration,  the  arrangement  was  that 
the  defendant  should  guaranty  the  payment  of  the  debt  N.  W. 
S.  owed  the  plaintiff,  to  give  effect  to  which  arrangement  it  was 
agreed  that  N.  W.  S.  should  execute  his  bond  to  the  defendant, 
and  the  defendant  should  endorse  his  name  thereon  in  blank, 
as  a  guarantor  of  the  debt.  There  is  nothing  in  this  transac- 
tion which  precludes  the  plaintiff  from  proving  it  by  parol  testi- 
mony and  recovering  upon  it  when  so  proved. 

If  the  obligee  of  a  valid  instrument  who  endorsed  it  on  the 
blank  is  conclusively  presumed  to  be  an  assignor,  no  such  pre- 
sumption can  attach  to  one  who  was  never  the  holder  of  the 
instrument,  to  whom  it  was  never  delivered  as  a  valid  obliga- 
tion, and  whose  only  connection  with  it  was  to  endorse  his  name 
upon  it. 

In  the  case  of  Etheridge^s  Administrator  et  als.  vs.  Parker 
and  Wife  et  als.,  76  Va.,  247  : 

2.  Assignor. — Assignee, — Equities. — Assignee  of  non-negoti- 
able chose  takes  it  subject  to  all  debtor's  equities  against  as- 
signor existing  at  time  or  before  notice  of  assignment,  and  based 
on  honest  transactions  between  him  and  assignor. 

3.  Idem. — Private  agreement,  unknown  to  assignee,  cannot 
bo  set  up  as  defence  to  payment  by  one  who  lends  to  another 

.  his  credit  in  the  form  of  a  note. 

In  the  case  of  Barley  s  Executor  vs.  Layman  s  Administrators, 
79  Va.,  518,  decided  October  7,  1884,  it  was  held :  In  absence 
of  proof  of  consideration  for  assignment  it  must  be  presumed 


528  Citations  to  the  Code  of  Virginia. 

to  have  been  the  value  of  the  thing  assigned,  and  such  value 
measures  the  recovery  on  recourse. 

In  the  case  of  Roanoke  Land  and  Improvement  Company  vs. 
Kara  cfc  Ilickson,  80  Va,,  589,  decided  June  25,  1885.  In  suit 
of  sub-contractor  against  owner  for  materials  furnished  general 
contractor,  it  is  unnecessary  to  allege  that  any  part  of  the  price 
agreed  to  be  paid  remained  due  to  latter  from  owner  when 
notice  was  given. 

In  the  case  of  Daileys  Executor  vs.  AVarren  et  als.,  80  Va., 
512,  decided  June  11,  1885,  it  was  held:  Assignments  of  choses 
in  action  need  not  in  Virginia  be  recorded.  The  case  here  is 
one  of  competitive  assignments. 

Where  one  files  petition  in  pending  cause  to  assert  claim  as 
assignee  to  debt  reported  therein,  the  assignor  must  be  made 
party  to  petition  and  summoned  to  answer. 

Decree  directing  payment  of  such  debt  to  such  petitioning 
assignee  will  be  reversed  on  the  petition  of  the  assignor,  who 
has  not  been  made  party  and  summoned  to  answer;  and  on 
hearing  such  petition  to  rehear,  the  assignor  and  the  rival  as- 
signee are  competent  witnesses  to  prove  the  assignment  to  the 
latter  and  the  consideration  thereof. 

Declarations  made  and  letters  written  by  assignor  subsequent 
to  assignment  are  inadmissible  as  evidence  against  his  assignee. 

Where  subsequent  assignee  claims  that  he  took  his  assign- 
ment for  value  without  notice  of  the  previous  assignment,  and 
that  the  previous  assignment  was  fraudulent,  the  burden  is,  of 
course,  on  him  to  prove  the  case. 

In  the  case  of  McClintic  vs.  Wise's  Administrators  et  als.,  25 
Grat.,  448,  decided  September,  1874.  W.  sold  land  to  M.,  re- 
taining the  title,  for  four  thousand  one  hundred  dollars,  cash 
one  thousand  dollars,  and  three  bonds  payable  January  1, 1858, 
1859,  and  1860.  The  first  was  paid  to  W.  He  transferred  the 
bond  due  January  1,  1860,  to  S.  in  May,  1859,  who  assigned  it 
to  H.  W.  died  in  possession  of  the  bond  due  January,  1859. 
His  administrators  sued  M.  in  equity  to  subject  the  land  to  pay 
the  bond  held  by  W.  at  his  death,  without  making  S.  or  H.  a 
party,  and  the  land  was  sold  by  a  commissioner  to  J.  for  two 
thousand  dollars,  and  the  sale  was  confirmed  and  the  commis- 
sioner was  directed  to  collect  the  money  and  pay  the  plaintifi's. 
H.,  upon  his  petition,  is  made  a  defendant  in  the  suit,  and  files 
his  answer,  claiming  that  his  bond  is  still  unpaid,  and  that  he  is 
entitled  to  priority  of  payment  out  of  the  land.  The  adminis- 
trators file  an  answer,  insisting  that  H.  had  lost  his  right  to  sub- 
ject the  land  by  his  laches  in  not  suing  M.,  who  had  in  the  mean-  • 
time  become  insolvent.  The  decree  gives  priority  to  the  plain- 
tiffs over  H.,  and  he  appeals.  Held:  The  bond  held  by  H. 
having  been  transferred  by  W.  in  his  lifetime,  though  due  after 


Citations  to  the  Code  of  Vikginia.  529 

the  bond  retained  by  him,  is  to  be  first  paid  out  of  the  proceeds 
of  the  sale  of  the  land. 

H.  was  a  necessary  party  to  the  suit,  and  it  was  error  to  decree 
a  sale  of  the  land  without  having  first  made  him  a  party,  and 
the  question  of  priority  settled  between  him  and  the  plaintiffs. 

The  purchaser  at  the  sale  made  under  the  decree  of  the  court 
is  interested  in  the  decision  of  the  question  of  priority  between 
the  plaintiffs  and  H.,  and  ought  to  be  heard  in  opposition  to  any 
order  affecting  his  interest.  And  a  rule,  if  desired  by  the  plain- 
tiffs, should  be  awarded  by  the  court  below  against  said  pur- 
chaser to  show  cause  why  said  sale  should  not  be  set  aside. 

But  in  no  event  is  said  sale  to  be  set  aside  and  a  resale 
ordered,  unless  the  plaintiffs,  or  some  one  of  them,  shall  give 
bond  with  proper  security  before  said  court  for  a  substantial 
advance  upon  the  price  for  which  the  property  heretofore  sold. 

If  no  resale  is  made,  the  fund  arising  from  the  sale  already 
made,  being  the  proceeds  of  the  sale  of  the  land,  is  to  be  ap- 
plied, or  so  much  of  it  as  may  be  necessary,  to  the  satisfaction  of 
H.'s  debt  and  the  residue,  if  any,  to  that  of  the  plaintiffs. 

In  deeds  of  trust  and  mortgages,  when  the  debt  is  assigned, 
the  deed  of  trust  or  mortgage  is  assigned  or  transferred  along 
with  it.  And  the  same  principles  apply  to  the  vendor's  lien,  re- 
sulting from  the  retention  of  the  legal  title. 

In  such  cases,  where  there  are  several  debts  secured,  and  there 
are  successive  assignments  of  them,  the  first  assigned  carries 
with  it  the  assignment  of  so  much  of  the  lien  as  is  necessary  to 
pay  it,  unless  it  is  expressly  provided  otherwise. 

In  such  a  case  the  assignee,  though  he  may  have  lost  his 
remedy  against  his  assignor  by  want  of  due  diligence  in  suing 
the  debtor,  does  not  thereby  lose  his  remedy  against  the  land. 

If  a  vendor  of  land  retaining  the  title  assigns  one  of  the  bonds 
given  for  the  purchase-money,  and  then  brings  ejectment  against 
the  vendor,  and  recovers  possession  of  the  land,  he  recovers 
and  holds  it  in  subordination  to  the  rights  of  the  assignee.  The 
assignee  having  b}^  the  right  of  the  assignment  acquired  the  bene- 
fit of  the  lien,  whatever  it  may  be,  is  entitled  to  all  the  reme- 
dies of  the  vendor  to  enforce  it,  and  he  cannot  be  deprived  of 
these  remedies  by  any  act  of  the  vendor. 

In  the  case  of  Gordon  vs.  Fitzhuyh  et  als.,  27  Grat.,  835,  de- 
cided November  16,  1876,  it  was  held :  K.  made  a  deed  to  F. 
conveying  a  tract  of  land  in  trust  to  secure  the  purchase-money 
of  the  land,  evidenced  by  five  bonds,  payable  at  different  periods 
to  R.,  the  vendor.  R.  first  assigned  the  bond  payable  second  in 
date  to  M.;  next  he  assigned  the  bond  payable  first  to  McG., 
and  afterwards  he  assigned  the  last  three  to  G.  The  land  when 
sold  did  not  produce  sufficient  to  pay  all  the  bonds.  Held :  The 
bond  assigned  to  McG.,  the  first  assignee,  is  to  be  first  paid; 
34 


530  Citations  to  the  Code  of  Virginia. 

then  the  bond  assigned  to  M.,  the  second  assignee,  and  the  bal- 
ance, if  any,  is  to  be  paid  to  G.,  the  last  assignee. 

In  the  case  of  Gruhhs  vs.  Wysors,  32  Grat.,  127  and  131,  de- 
cided July,  1879.  G.  sold  a  tract  of  land  to  W.,  Jr.,  the  purchase- 
money  to  be  paid  in  three  equal  annual  instalments,  and  G. 
retaining  the  title  until  the  whole  was  paid.  For  the  first  in- 
stalment W.,  Jr.,  executed  a  negotiable  note,  with  W.,  Sr,,  as 
surety,  payable  at  one  year,  and  he  gave  his  own  notes  at  two 
and  three  years  for  the  rest  of  the  purchase-money.  G.  assigned 
the  note  for  the  first  payment  to  M.,  and  M.  assigned  it  to  H., 
and  it  was  paid  after  maturity  and  protested  by  W.,  Sr.,  to  be 
subrogated  to  the  lien  rights  of  G.,  and  to  be  paid  out  of  the 
proceeds  of  the  sale  of  the  land  before  the  two  bonds  given  for 
the  second  and  third  instalments  held  by  G.  were  paid.  Held : 
While  the  assignment  of  the  note  for  the  first  payment  by  G. 
carried  with  it  to  his  assignee  so  much  of  the  lien  on  the  land 
as  was  necessary  to  secure  the  same,  and,  as  between  G.  and  the 
assignee,  gave  the  latter  a  prior  claim,  these  equities  of  the  par- 
ties inter  sese  are  not  available  to  the  surety  of  W.,  Sr.,  by  sub- 
rogation in  a  case  like  this,  where  the  rights  of  G.,  the  creditor, 
would  be  impaired  thereby;  and  therefore  the  lien  of  W.,  Sr., 
the  surety,  must  be  postponed  to  that  of  G.,  the  vendor.  While 
a  surety  who  pays  a  debt  of  his  principal  will  ordinarily  be  sub- 
rogated to  all  the  lien  rights  of  the  creditor,  when  the  latter  has 
no  longer  occasion  to  hold  them  for  his  protection,  equity  will 
never  displace  the  creditor  to  his  prejudice  merely  to  give  the 
surety  a  better  footing. 

For  the  reference  to  6  Leigh,  534,  see  supra,  this  section. 

In  the  case  of  Anderson  et  als.  vs.  DeSoer  ;  Same  vs.  Gallego^s 
Administrator  et  als.,  6  Grat.,  363,  decided  October,  1849.  A 
bill  of  exchange  drawn  by  a  legatee  under  a  will  upon  the  ex- 
ecutors, for  value  received,  directing  them  to  pay  to  the  order 
of  the  drawee  a  specific  sum,  the  amount  of  the  legacy,  out  of 
the  funds  in  their  hands  destined  by  the  testator  for  the  pay- 
ment thereof,  is  an  equitable  assignment  of  the  legacy. 

The  plaintiffs  claim  in  their  bill  as  equitable  assignees  of  a 
legacy,  by  virtue  of  a  biU  of  exchange  drawn  by  the  legatees 
upon  the  executors,  and  endorsed  to  the  plaintiffs,  and  the  bill 
of  exchange  is  filed  with  the  bill.  No  proof  of  the  making  the 
bill  of  exchange  or  of  the  endorsement  is  called  for  in  the  court 
below.  Held:  An  objection  to  the  evidence  for  want  of  this 
proof  cannot  be  taken  in  the  appellate  court. 

The  reference  to  76  Va.,  372  and  376,  is  an  error. 

In  the  case  of  .S'.  F.  B.  E.  Co.  vs.  Miller,  80  Va.,  821,  de- 
cided October  1,  1885,  it  was  held,  p.  832-33 :  It  is  well  settled 
that  where  one  man  having  funds  in  another's  hands  draws  on 
them  an  order  to  be  paid  to  a  third  party  for  value,  such  order 


Citations  to  the  Code  of  Yirginia.  531 

•will  pass  to  the  payee  the  title  to  said  funds,  which  title  a  court 
of  equity  will  enforce.  But  drawee  may  refuse  to  accept,  in 
which  event  he  is  not  liable  at  law  to  payee ;  but  payee  may 
then  return  to  drawer,  or  may  sue  drawer,  or  may  sue  in  equity 
for  the  fund. 

In  the  case  of  Switzer  et  als.  vs.  Noffsinger,  82  Ya.,  518,  de- 
cided November  11,  1886,  it  was  held:  No  particular  form  is 
necessary  to  constitute  an  equitable  assignment  of  debt  or  chose 
in  action.  Order  for  value,  appropriating  a  fund,  is  sufficient. 
No  action  can  be  maintained  against  a  drawee  without  his  ac- 
ceptance. Notice  to  debtor  is  essential  to  perfect  title.  Until 
such  notice  the  assignment  is  liable  to  all  equities  between 
debtor  and  assignor.     Assignment  of  debt  carries  the  security. 

In  the  case  of  Porter  vs.  Young,  85  Va.,  49,  decided  May  17, 
1888,  it  was  held :  Under  this  section  an  ordinary  running  ac- 
count between  parties,  showing  an  alleged  indebtedness  from 
the  one  to  the  other,  is  assignable. 

In  the  case  of  Norfolk  i&  Western  Railroad  Company  vs.  Read, 
87  Va.,  185,  decided  December  4,  1890,  it  was  held:  A  right  of 
action  against  a  common  carrier  for  injury  to  goods  while  in 
course  of  transportation  is  assignable. 

In  the  case  of  Tyler  {Receiver)  vs.  Ricaniore,S>^  Va.,  466,  decided 
February  5,  1891,  it  was  held :  A  right  of  action  in  pending  suit 
against  railroad  company  for  negligent  setting  fire  to  plaintiff's 
property  may  be  assigned  in  whole  or  in  part,  and  the  suit  con- 
tinued to  be  prosecuted  in  assignor's  name  for  benefit  of 
assignee. 

Section  2862. 

In  the  case  of  Winn  vs.  Bowles,  6  Munf.,  23,  decided  Novem- 
ber 6,  1817,  it  was  held :  The  right  of  the  assignee  of  a  bond  to 
demand  payment  thereof  in  a  court  of  equity,  which  existed  be- 
fore the  statute  authorizing  him  to  sue  at  law  in  his  own  name 
upon  the  assignment,  is  not  impaired  by  that  statute,  but  the 
latter  remedy  is  cumulative  and  additional  to  the  former. 

In  the  case  of  Moseley  vs.  Boush,  etc.,  4  Rand.,  392,  decided 
July,  1826,  it  was  held :  The  assignee  of  a  chose  in  action  has 
not  a  right  in  all  cases  to  come  into  a  court  of  equity  upon  the 
mere  ground  that  he  cannot  sue  in  his  own  name  at  law,  but  it 
must  appear  that  he  is  prevented  from  suing  at  law  in  the  name 
of  the  assignor,  or  that  the  assignor  himself  would  have  had  a 
right,  if  he  had  not  assigned,  to  go  into  a  court  of  equity. 

CHAPTER  CXXXIV. 

Section  2863. 
In  the  case  oi  Mc Arthur  y^.  Chase,  13  Grat.,  683,  decided 
February  25,  1857,  it  was  held :  In  the  act  in  relation  to  limited 


532  Citations  to  the  Code  of  Virginia. 

partnerships  the  -word  insolvency  means   that  the  partnership 
has  not  sufficient  property  and  effects  to  pay  all  its  debts. 

A  deed  made  by  a  limited  partnership,  conveying  all  its  pro- 
perty in  trust  to  pay  a  debt  to  a  firm  of  which  the  special 
partner  is  a  member,  at  a  time  when  the  debts  of  the  partner- 
ship exceeded  the  value  of  its  property,  and  when  the  acting 
partners  knew  that  the  partnership  must  stop  business  unless 
the  special  partner  or  his  firm  would  advance  money  to  enable 
them  to  carry  on  the  business,  and  without  an  undertaking  on 
his  part  to  make  such  advances,  though  they  may  have  had 
some  expectation  that  he  would  do  it,  is  void  as  to  other  credi- 
tors of  the  partnership.  Under  such  circumstances  confessions 
of  judgments  in  favor  of  some  creditors  in  order  to  give  them  a 
preference  are  void  as  to  the  creditors. 

A  special  partner  taking  a  deed  of  trust  to  secure  a  debt  due 
to  a  firm  of  which  he  is  a  member,  under  such  circumstances, 
makes  himself  liable  as  a  general  partner  to  the  creditors  of  the 
partnership. 

In  the  distribution  of  the  assets  of  such  a  partnership  among 
its  creditors,  a  debt  due  to  the  firm  of  which  the  special  part- 
ner is  a  member  is  to  be  paid  ratably  with  the  debts  due  to 
other  creditors. 

A  court  of  equity  having  obtained  jurisdiction  of  a  suit 
by  creditors  to  set  aside  a  deed  improperly  made,  to  give  pre- 
ference to  a  creditor  of  the  partnership,  and  to  have  a  dis- 
tribution of  the  assets  of  the  partnership  among  all  the  credi- 
tors, may  proceed  to  do  complete  justice  in  the  cause,  and  to 
make  a  personal  decree  against  the  special  partner,  who  has 
made  himself  liable  as  a  general  partner,  in  favor  of  the  credi- 
tors, for  the  balance  due  them  respectively  after  distributing  the 
assets  of  the  partnership  ratably  among  them.  The  fact  that 
the  creditors  have  recovered  judgments  at  law  against  the  general 
partners  will  not  defeat  the  remedy  against  the  special  partner. 

The  share  of  the  special  partner  in  the  debt  due  to  the  firm 
of  which  he  is  a  member  wiU  be  retained  under  the  control  of 
the  court,  and  applied  to  the  satisfaction  of  the  creditors  of  the 
partnership.  To  ascertain  what  is  the  share  of  the  special  part- 
ner in  said  debt,  the  court  will  direct  an  inquiry  into  the  ability 
of  the  firm  of  which  he  is  a  member,  to  pay  their  debts,  inde- 
pendent of  their  claim  upon  the  partnership,  and  into  the  inter- 
est of  the  special  partner  in  said  firm,  and  will  direct  that  if  no 
evidence  is  offered,  it  shall  be  presumed  that  the  firm  is  able  to 
pay  its  debts,  and  that  the  special  partner  has  an  equal  interest 
in  the  concern. 

Section  2874. 

For  reference  to  13  Grat.,  683,  see  McArthur  vs.  Chase^  cited 
supra.  Section  2863. 


Citations  to  the  Code  of  Virginia.  583 

Section  2877. 

In  the  case  of  Trevillian  vs.  Powell,  Quarterly  Law  Journal 
for  1856,  p.  257,  decided  May  term,  1857,  it  was  held  :  Where  a 
person  transacts  business  for  a  known  principal,  and  is  known 
to  be  such  by  all  persons  having  any  interest  in  knowing  the 
fact,  when  it  is  notorious  who  is  the  principal,  the  goods  in  the 
store  are  not  liable  for  the  debts  of  the  agent,  although  he  has 
no  sign  over  the  door  disclosing  the  name  of  his  principal. 

In  such  case  he  does  not  transact  business  as  a  trader,  with  the 
addition  of  the  word  agent,  according  to  the  true  intent  and 
meaning  of  this  section,  and  it  is  not  necessary  that  the  name  of 
the  said  principal  should  be  disclosed  by  a  sign,  as  is  required  to 
be  done  by  this  section  in  the  cases  to  which  it  applies. 

In  such  case,  if  a  third  person  levy  an  execution  against  the 
agent  upon  the  property  in  the  store,  the  principal  may  come  in 
by  petition  and  have  the  said  property  discharged  of  the  levy, 
with  costs  against  the  plaintiff  in  the  execution. 

In  the  case  of  The  Farmers'  Bank  of  Virginia  vs.  Kent, 
Paine  dh  Kent,  16  Grat.,  257,  decided  April  23,  1861.  K.,  K. 
&  A.  were  a  firm  doing  a  wholesale  business  as  merchants  in 
Richmond,  and  in  1846  they  employed  P.  to  carry  on  a  retail 
business  in  Lynchburg,  under  the  style  of  P.,  agent  for  J.  S.  K., 
the  name  of  one  of  the  partners.  The  publication  was  made,  and 
the  sign  put  up  in  the  above  name  as  prescribed  by  statute.  In 
1850  some  of  the  partners  retired,  but  the  firm  in  Richmond 
was  continued,  new  partners  being  admitted  under  the  name  of 
K,,  P.  &  K. ;  J.  S.  K.  continuing  to  be  a  partner  of  the  firm; 
but  neither  then,  nor  at  any  time  after  the  Code  of  1849  went 
into  effect,  was  there  any  new  publication  as  to  the  agency  in 
Lynchburg.  In  1853  the  goods  of  K.,  P.  and  K.  in  the  store- 
house of  P.  in  Lynchburg  were  taken  under  execution  by  his 
creditors.  Held :  The  law  having  been  complied  with  in  1846, 
and  the  present  firm  in  Richmond  being  a  continuation  of  the 
former,  the  goods  are  not  liable  to  the  creditors  of  P. 

The  reference  to  17  Grat.,  503,  524,  is  an  error,  as  the  court, 
while  discussing  the  statute,  held  its  own  discussion  of  this  act 
to  be  foreign  to  the  matter  then  before  the  court. 

CHAPTER  CXXXV. 

Section  2890. 

In  the  case  of  Croughton  vs.  Duval,  3  Call,  69  (2d  edition, 
60),  decided  October  29,  1801,  it  was  held:  A  surety  to  a  bond 
prior  to  the  act  of  1794  is  not  absolved  from  the  obligation  by 
requesting  the  obligee  to  sue  and  his  failure  to  do  so. 

In  the  case  of  Wright's  A  dministrator  vs.  Stockton,  5  Leigh, 
153,  decided  March,  1834.     In  debt  on  bond  by  C.  S.  against 


534  Citations  to  the  Code  of  Virginia. 

"W".  S.,  administrator,  defendant  takes  oyer  of  the  bond,  which 
was  a  bond  executed  by  H.  and  four  others,  of  whom  W.  waa 
one,  and  then  pleads  in  bar  that  W.  and  three  of  the  other 
obligors  were  surety  for  H.,  the  first  obligor,  and  that  those 
three  other  sureties  required  plaintiff  to  bring  suit  on  the  bond 
promptly,  but  plaintiff  did  not  bring  suit  as  required  within  a 
reasonable  time,  and  when  she  did  bring  suit  those  three  other 
sureties  pleaded  plaintiff's  failure  to  bring  suit  promptly,  in  bar 
of  her  action  against  them,  and  on  that  plea  judgment  was  given 
for  those  three  sureties.  Upon  general  demurrer  to  this  plea, 
held:  The  matter  pleaded  is  a  bar  to  plaintiffs  action  against 
W.,  administrator.  Where  some  of  several  sureties  are  dis- 
charged by  any  act  or  omission  of  the  obligee,  the  other  sureties 
are  also  discharged. 

In  the  case  of  AsKby's  Administrators  vs.  Smith's  Executor,  9^ 
Leigh,  164,  decided  January,  1838.  Principal,  debtor  and  surety 
being  bound  in  a  bond  for  money  payable  at  a  future  day,  the  surety, 
before  the  debt  has  become  payable,  represents  to  the  creditor 
that  the  principal  is  about  to  remove  himself  and  his  effects  out 
of  the  Commonwealth,  and  requests  the  creditor  to  sue  out  an 
attachment  against  him  under  the  statute,  and  the  creditor  sues 
out  the  attachment  accordingly,  and  it  is  levied  on  the  goods  of 
the  principal  debtor  sufficient  to  satisfy  the  debt ;  but  afterwards 
the  creditor  accepts  a  mortgage  from  the  principal  debtor  to 
secure  punctual  payment  of  the  debt  when  due,  and  thereupon 
the  attached  effects  are,  with  the  creditor's  consent,  restored 
to  the  debtor,  and  the  attachment  no  further  prosecuted,  and 
the  debtor  eloigns  the  mortgaged  effects.  Held :  The  surety  i& 
in  equity  discharged  from  the  debt. 

In  the  case  of  Humphrey  vs.  Hitt,  6  Grat.,  509,  decided  Jan- 
uary, 1850,  it  was  held,  p.  523 :  A  mere  countermand  of  an  exe- 
cution by  a  creditor  after  it  goes  into  the  hands  of  a  sheriff, 
but  before  it  is  levied,  does  not  release  a  surety  of  the  execu- 
tion debtor. 

In  the  case  of  Harrisons  Executor  et  als.  vs.  Price's  Executor 
et  als.,  25  Grat.,  553,  decided  December,  1874,  it  was  held : 
Where  one  surety  in  a  bond  gives  notice  to  the  obligee  to  sue 
the  obligation,  the  statute  does  not  peremptorily  require  the 
obligee,  after  obtaining  judgment,  to  sue  out  execution  upon  it, 
it  only  requires  him  to  use  due  diligence  in  prosecuting  suit  ta 
judgment  and  by  execution. 

In  such  case,  where  the  creditor  has  not  been  guilty  of  laches, 
but  the  clerk  has  refused  to  issue  the  execution  on  the  ground 
that  the  stay  law  forbade  it,  and  the  court  has  sustained  him  in 
it,  whether  the  judgment  of  the  court  was  right  or  wrong  in  en- 
forcing the  stay  law,  negligence  cannot  be  imputed  to  the 
creditor. 


Citations  to  the  Code  of  Yirginia.  535 

Upon  such  notice  to  the  creditor  by  a  surety,  the  creditor  is 
not  required  to  pursue  the  estate  of  the  principal  in  equity  to 
impeach  alleged  fraudulent  conveyances,  or  to  subject  an  equity 
of  the  principal  to  the  payment  of  his  debt,  or  to  exhaust  his 
remedies  against  the  principal  before  he  can  have  satisfaction 
out  of  the  estate  of  the  surety. 

The  statute  which  authorizes  a  surety  to  give  notice  to  the 
obligee  to  sue,  gives  the  surety  a  more  summary  remedy  than 
he  had  before  by  bill  in  equity,  but  does  not  change  the  rela- 
tion or  the  contract  between  creditor  and  surety.  It  only  holds 
the  creditor  responsible  if,  by  reason  of  his  laches  or  negligence, 
the  equity  of  the  surety  against  the  principal  is  infringed. 

In  the  case  of  Davis  [Administrator  for,  etc.)  vs.  Sneadet  als., 
33  Grat.,  705,  decided  September,  1880,  it  was  held :  A  person 
appointed  by  a  court  of  equity  in  a  pending  cause  a  receiver  to 
collect  the  purchase-money  of  lands  sold  by  him  as  commis- 
sioner under  a  previous  decree  in  the  cause,  and  for  which  he 
bad  taken  a  bond  with  surety  to  himself  as  commissioner,  is  not 
a  creditor  in  the  sense  of  the  statute.  Code  of  1873,  Chapter  143, 
Sections  4  and  5,  to  whom  a  surety  on  the  bond  may  give  notice 
to  bring  the  suit  upon  it.  If  the  receiver  was  such  a  creditor, 
he  could  only  have  authority  to  sue  after  giving  the  security  re- 
quired of  him  in  the  decree  appointing  him  receiver ;  and  in  the 
absence  of  clear  and  satisfactory  proof  that  he  had  given  the 
security  required,  the  notice  to  him  is  not  sufficient  to  release 
the  surety. 

Section  2891. 

The  reference  to  25  Grat,,  553,  is  to  the  case  of  Harrison  vs. 
Price^  quoted  supra.  Section  2890. 

In  the  case  of  Yuille's  Administrator  vs.  WimhisKs  Admin- 
istrator, 11  Va.,  308,  decided  March  22,  1883.  In  1852  W.  held 
bond  to  F.,  principal,  and  S.,  V.  and  P.,  sureties.  March  14, 
1868,  Y.'s  administrator,  H.,  by  notice  in  writing,  required  W. 
to  sue  on  the  bond.  W.  sued,  May  14,  1868.  All  the  obligors, 
except  Y.  F.  and  S.,  accepted  service  of  writ.  As  to  them,  by 
consent,  the  suit  was  that  day  placed  on  the  office  judgment 
docket,  and  they  pleaded.  Of  this  H.  was  informed,  and  also 
that  the  proper  credits  would  be  given,  and  acquiesced,  and  suf- 
fered in  September,  1868,  in  his  county,  judgment  to  go  on  the 
bond  against  him  by  the  default.  Against  F.  and  S.  in  October, 
1868,  in  their  county,  judgment  went,  and  executions  were  issued, 
but  were  restrained  by  the  extension  of  the  stay  law  through 
1869  by  the  military  commandant. 

In  February,  1868,  P.  had,  under  the  act  of  April  25,  1867, 
compromised  with  W.  in  full  of  one-third  of  the  bond,  which 
was  endorsed  thereon.  Suit  was  brought,  however,  against  him 
in  August,  1868.     At  September  rules,  1868,  he  pleaded  his  re- 


636  Citations  to  the  Code  of  Virginia. 

lease,  and  the  suit  was  dismissed.  S.,  May  13,  1868,  conveyed 
all  his  property  to  secure  ratably  all  his  debts.  Another  execu- 
tion was  issued  against  F.  October,  1870,  and  returned  "no  ef- 
fects." In  August,  1871,  the  execution  was  issued  against  H. 
as  administrator  of  Y.,  who  got  an  injunction.  It  was  dissolved 
in  1880,  and  a  decree  entered  for  the  amount  due  on  the  judg- 
ment.    On  appeal  to  this  court.     Held : 

1.  The  act  of  Assembly  under  which  P.  compromised  his  lia- 
bility on  the  bond  and  was  released  was  not  unconstitutional  as 
to  that  bond. 

2.  By  the  very  terms  of  that  act,  Section  16,  such  release  of 
P.  cannot  affect  or  impair  the  right  of  any  other  surety  who 
may  have  been  required  to  pay  more  of  that  bond  than  was  so 
released  to  call  on  P.  for  contribution. 

3.  The  circumstances  do  not  show  that  the  suit  was  not  insti- 
tuted within  a  reasonable  time  after  the  requisition,  nor  that  it 
was  not  prosecuted  with  due  diligence  to  judgment  and  by  exe- 
cution, nor  that  Y.'s  administrator  is  entitled  to  the  aid  of  equity 
to  enable  him  to  avail  himself  of  defences  (if  any)  which  he 
might  have  made,  but  did  not  make  at  law. 

4.  The  property  conveyed  in  trust  by  S.  is  also  liable,  under 
the  terms  of  the  deed,  to  contribution  to  his  co-sureties  on  the 
bond. 

Section  2893. 

In  the  case  of  Graves  vs.  Webb,  1  Call,  443  (2d  edition,  385), 
decided  November  2,  1798,  it  was  held :  The  surety  is  entitled 
to  judgment  against  the  principal  for  the  saiDe  specific  thing 
which  he  has  been  adjudged  to  pay  himself. 

In  the  case  of  Tinsley  vs.  Oliver's  Administrators  and  Heirs, 
5  Munf.,  419,  decided  February  11,  1817,  it  was  held:  A  surety 
in  a  bond,  having  paid  to  a  creditor  the  amount  of  a  judgment 
against  him,  thereupon  may  file  a  bill  in  equity  (without  having 
made  a  motion  or  brought  any  action  at  law)  against  the  admin- 
istrator and  heirs  of  the  principal  debtor  for  the  purpose  of 
establishing  his  demand,  of  having  an  account  of  the  personal 
and  real  estate,  and  of  being  permitted  to  stand  in  the  place  of 
the  obligee  in  the  bond  so  as  to  be  paid  out  of  the  real  estate  in 
default  of  the  personal. 

In  the  case  of  Mountjoy  g&  Triplett  vs.  Bank's  Executor  and 
Devisees  et  als.,  6  Munf.,  387,  decided  April  16,  1819,  it  was 
held :  If  an  official  bond  given  by  a  sheriff  and  his  sureties  be- 
fore the  act  of  1786  be  so  worded  as  not  to  be  joint  and  seve- 
ral, but  joint  only,  a  court  of  chancery  is  the  proper  tribunal  to 
give  the  sureties  relief  against  the  estate  of  the  sheriff  after  his 
death,  upon  their  being  compelled  to  pay  a  sum  of  money  for  a 
delinquency  of  such  sheriff  in  his  lifetime. 

In  the  case  oiAyers  vs.  Lewellin,  3  Leigh,  609,  decided  March, 


Citations  to  the  Code  of  Virginia.  537 

1832,  it  was  held :  In  the  case  of  a  summary  motion  by  surety 
against  principal  to  recover  money  paid  by  the  surety,  if  the 
defendant  appear  and  judgment  be  rendered  on  a  hearing  of 
the  parties,  the  notice  of  the  motion  is  not  a  part  of  the  record, 
unless  it  be  made  so  by  a  bill  of  exceptions  to  the  opinion  of 
the  coiTrt. 

A  surety,  having  paid  five  several  sums  of  money  for  his  prin- 
cipal, may  maintain  five  several  motions,  and  recover  several 
judgments  for  the  debts  and  for  the  cost  of  each  motion. 

In  the  case  of  Enders,  etc.^  vs.  Bnme,  4  Rand.,  438,  decided 
August,  1826,  it  was  held :  Equity  does  not  regard  form,  but 
substance ;  and  therefore  it  does  not  require  that  a  surety  shall 
be  bound  in  the  same  bond  with  his  principal  in  order  to  make 
the  doctrine  of  substitution  operate,  but  merely  that,  having 
bound  himself  for  the  debt  of  the  principal  debtor,  he  should 
have  paid  it. 

In  the  case  of  Watts  et  als.  vs.  Kinney  and  Wife,  3  Leigh, 
272,  decided  November,  1831.  A  judgment  is  recovered  against 
a  principal  and  his  sureties;  the  judgment-creditor  sues  out  no 
elegit  or  other  execution  ;  within  the  year  the  sureties  discharge 
the  judgment.  Held:  The  sureties  have  a  right  to  be  subro- 
gated in  equity  to  the  benefit  of  the  lien  of  the  creditor's  judg- 
ment, upon  the  lands  of  the  principal,  in  preference  to  a  foreign 
attachment  sued  out  by  another  creditor  of  the  principal  after 
the  judgment. 

In  the  case  of  Douglass  vs.  Fagg,  8  Leigh,  588,  decided  July, 
1837.  M.  sells  lands  to  F.,  who  gives  two  bonds  for  the  pur- 
chase-money. D.,  for  whose  benefit  the  purchase  is  made,  pays 
ofi"  the  first  bond  and  part  of  the  second.  The  balance  he  de- 
livers to  F.  to  be  paid  to  M.,  but  it  is  not  paid  over,  and  suit  is 
brought  for  the  same  on  the  second  bond  against  F.  Judgment 
being  rendered,  F.  gives  a  forthcoming  bond  with  suret}^,  which 
is  forfeited,  and  afterwards  obtains  an  injunction  upon  giving 
bond  with  surety  to  pay  the  amount  of  the  judgment  in  case  the 
injunction  shall  be  dissolved.  The  injunction  is  afterwards  dis- 
solved, and  judgment  rendered  against  the  surety  in  the  injunc- 
tion bond,  which  he  satisfies.  Then  the  surety  claims  for  this 
money  paid  by  him  in  satisfaction  of  the  vendor's  claim ;  the 
vendor  had  a  lien  upon  the  land,  and  files  a  bill  to  be  substi- 
tuted in  the  place  of  the  vendor,  and  have  the  benefit  of  the 
hen.  Held :  The  claim  to  substitution  cannot  be  sustained,  and 
the  bill  must  therefore  be  dismissed. 

In  the  case  of  Hopewell  et  als.  vs.  The  Cumberland  Bank  of 
Alleghany,  10  Leigh,  206  (2d  edition,  214),  decided  April,  1839. 
Several  persons  being  bound  as  sureties  for  M.  in  bonds,  and 
others  being  endorsers  of  notes  for  his  accommodation  at  dif- 
ferent banks,  which  notes  had  come  to  maturity  and  had  been 


538  Citations  to  the  Code  of  Virginia. 

protested  for  non-payment,  M.,  by  deed  of  trust,  mortgages 
property  to  be  sold  and  applied  to  the  indemnification  of  each 
and  all  of  the  sureties  and  endorsers,  without  preference  of  any 
over  the  others,  in  case  they  should  sustain  loss  by  reason  of 
their  suretyships  and  endorsements;  the  endorsers  of  a  note 
held  by  one  of  the  banks  are  discharged  from  liability  by  the 
laches  of  the  bank  or  otherwise,  so  that  the  endorsers  of  this 
note  are  never  damnified.  Upon  a  bill  in  equity  filed  by  this 
bank  for  participation  in  the  trust-fund  with  the  sureties  and 
the  endorsers  who  had  sustained  damage,  held:  The  bank 
could  only  claim  to  be  subrogated  to  the  rights  of  the  endorsers 
of  the  note  which  it  held,  and  these  having  sustained  no 
damage,  and  so  having  no  claim  to  participate  in  the  trust- 
fund  themselves,  therefore  the  bank  has  no  claim  to  participate 
in  it. 

In  the  case  of  Givens  et  als.  vs.  NelsoriS  Executor  et  ah.,  10 
Leigh,  382  (2d  edition,  397),  decided  July,  1839.  The  princi- 
pal in  a  bond,  to  indemnify  his  sureties  therein,  assigns  a  claim 
to  a  trustee  in  trust  that  he  shall  collect  the  amount  and  apply 
the  proceeds  to  the  discharge  of  the  bond.  Before  this  claim 
is  collected  suit  is  brought  upon  the  bond,  and  the  sureties  con- 
tribute ratably  to  its  payment.  One  of  the  sureties  obtains  a 
decree  against  the  principal  for  what  he  pays,  and  upon  this 
decree  sues  out  a  ca.  sa.,  which,  being  executed  on  the  principal, 
he  enters  into  a  bounds  bond  with  sureties  and  afterwards 
breaks  the  condition,  whereby  the  sureties  in  that  bond  become 
liable.  The  claim  assigned  to  the  trustee  being  afterwards  col- 
lected by  him,  the  court  of  chancery  allows  the  sureties  in  the 
bounds  bond  to  participate  in  this  trust-fund  in  the  event  of 
their  having  made  payment.  Held:  By  the  court  of  appeals 
that  this  is  erroneous,  that  the  surety  that  secured  the  security 
of  the  bounds  bond  was  bound  to  proceed  thereon  against  the 
sureties  in  the  same,  and  could  only  come  upon  the  trust-fund 
for  any  deficiency  in  his  recovery  from  them ;  and  that  the  sure- 
ties in  the  bounds  bond  could  have  no  right  to  resort  to  the 
trust-fund  for  their  reimbursement,  except  to  the  extent  of  any 
surplus  that  might  remain  after  the  full  indemnification  of  the 
original  sureties. 

In  the  case  of  McClung\B.  Beime,  10  Leigh,  394  (2d  edition, 
410),  decided  July,  1839.  A  judgment  was  rendered  the  8th  of 
May,  1828,  for  $148.63  damages,  with  interest  and  cost,  and  on 
the  same  day  an  appeal  was  allowed.  The  judgment  being 
affirmed,  damages  were  recovered  against  the  appellant  for  re- 
tarding the  execution,  and  also  costs  in  the  appellate  court.  A 
fieri  facias  being  then  issued  and  returned  nulla  bona,  the  surety 
in  the  appeal  bond  paid  $36^.64  in  satisfaction  of  the  judgment, 
and  within  a  year  after  the  affirmance  filed  a  bill  to  charge  real 


Citations  to  the  Code  of  Virginia.  539 

estate  aliened  by  the  debtor  between  the  date  of  the  original 
judgment  and  the  date  of  the  judgment  of  affirmance.     Held : 

1.  The  surety  is  to  be  substituted  in  the  place  of  the  judg- 
ment-creditor, and  to  have  benefit  of  his  lien. 

2.  The  real  estate  aliened  by  the  debtor  between  the  date  of 
the  original  judgment  and  the  date  of  the  judgment  of  affirm- 
ance, whether  owned  by  him  at  the  date  of  the  original  judg- 
ment or  acquired  afterwards,  is  subject  to  the  lien. 

3.  The  lien  is  not  only  for  damages,  interest  and  costs  recovered 
by  the  original  judgment,  but  also  for  the  damage  and  cost  to 
which  the  creditor  became  entitled  by  the  judgment  of  affirm- 
ance. 

8.  In  ascertaining  the  amount  to  be  raised  by  a  sale  of  the 
property,  interest  is  not  to  be  allowed  on  the  sum  of  $362.64 
paid  by  the  surety,  but  only  on  the  original  sum  of  $148.63. 

In  the  case  of  Ilaffey's  Heirs  vs.  Birchett,  11  Leigh,  83,  de- 
cided April,  1840.  In  order  to  secure  the  accommodation  en- 
dorsers of  a  note  due  at  bank,  the  maker  conveys  lands  to 
trustees  by  a  deed  in  which  he  covenants  for  himself  and  his  heirs 
with  the  trustees  and  with  the  bank  respectively,  that  he  is  pos- 
sessed of  an  absolute  estate  of  inheritance  in  the  premises,  and 
that  he  will  warrant  and  defend  the  same  against  all  persons; 
after  the  death  of  the  grantor,  the  endorsers  pay  the  debt  to  the 
bank,  and  the  trust  property  having  been  sold  to  satisfy  a  debt 
secured  by  a  prior  deed  of  trust  thereon,  they  file  a  bill  to  be 
subrogated  to  the  rights  of  the  bank  under  the  second  trust 
deed,  and  to  have  a  satisfaction  out  of  other  lands  of  the 
grantor's  descended  to  his  heirs.  Held :  The  covenant  in  the 
second  deed  of  trust  was  broken  by  the  sale  under  the  first. 

The  complainants  are  entitled  to  come  into  equity  for  satis- 
faction out  of  the  real  assets  in  the  hands  of  the  heirs,  to  the 
extent  of  the  damages  accruing  from  the  breach  of  the  ances- 
tor's covenant. 

The  amount  of  those  damages  being  the  sum  paid  in  discharge 
of  the  first  incumbrance,  and  so  fixed  and  certain,  an  issue  for 
the  purpose  of  ascertaining  them  is  unnecessary. 

In  the  case  of  PowelVs  JExeaitor  vs.  White,  11  Leigh,  309, 
decided  August,  1840,  it  was  held :  A  mere  verbal  recital  in  a 
deed  of  trust  that  the  cesUii  que  trust,  are  liable  as  endorsers  for 
the  maker  of  the  deed,  and  that  he  is  willing  and  desirous  to  in- 
demnify and  secure  them  from  all  loss  and  damage  in  conse- 
quence of  their  becoming  endorsers  by  conveying  property  for 
the  purpose,  will  not  entitle  the  endorsers,  after  the  death  of  the 
makers,  to  rank  as  specialty  creditors  in  the  administration  of  his 
personal  assets. 

Sureties  in  a  bond  who  pay  it  off  after  the  death  of  the 
principal  are  entitled  to  rank  as  specialty  creditors  of  the  prin- 


540  Citations  to  the  Code  of  Virginia. 

cipal,  and  if  they  be  administrators  of  his  estate,  may  retain 
whatever  they  pay  on  account  of  such  suretyship  out  of  the 
assets  that  come  to  their  hands  as  administrators  against  other 
specialty  creditors. 

In  the  case  of  Wheatley's  Heirs  vs.  Calhoun,  12  Leigh,  264, 
decided  April,  1841.  C.  and  W.  make  a  joint  purchase  of  real 
estate,  one  of  the  terms  of  purchase  being  that  on  receiving  a 
conveyance  of  the  property  from  vendor,  purchasers  shall  mort- 
gage same  property  to  secure  payment  of  the  purchase-money; 
vendor  executes  conveyance  to  C.  and  W.,  and  they  execute  a 
mortgage  of  the  property  according  to  the  agreement.  C.  dies, 
leaving  unpaid  three-fourths  of  the  purchase-money,  with  interest 
thereon,  all  of  which  W.  pays,  except  a  trivial  balance.  Held: 
W.  is  entitled  to  bo  subrogated  in  equit}'^  to  the  rights  of  the 
mortgagee,  and  to  have  satisfaction  out  of  the  mortgaged  sub- 
ject, for  the  excess  of  the  debt  paid  by  him  above  his  just  pro- 
portion; namely,  a  moiety  thereof,  and,  as  the  rights  of  the 
mortgagee  were  paramount  to  the  right  of  C.'s  widow  to  dower, 
so  are  the  rights  of  W.  by  subrogation  likewise  paramount  to 
her  right  of  dower. 

In  the  case  of  The  Bank  of  Virginia  and  May  vs.  Boisseau  et 
als.,  12  Leigh,  387,  decided  November,  1841.  A  deed  of  trust 
is  executed  to  indemnify  a  first  endorser  at  bank  from  loss ;  but 
though  the  note  is  not  paid,  the  first  endorser  is  exempted  from 
liability  by  the  failure  of  the  bank  to  give  him  due  notice  of 
dishonor.  Held:  Neither  the  bank  nor  any  subsequent  en- 
dorser has  any  right  to  claim  to  rank  as  a  creditor  on  the  trust- 
fund  under  the  deed  of  trust  by  subrogation  to  the  first  endorser, 
who  was  thereby  indemnified,  but  who  never  sustained  any  loss. 

In  the  case  of  Kent  vs.  MattJiews  <&  Jackson,  12  Leigh,  573, 
decided  August,  1841,  it  was  held:  That  a  surety,  before  the 
payment  of  a  debt,  has  a  right  to  resort  to  equity  against  the 
creditor  and  the  principal  debtor  to  compel  the  debtor  to  col- 
lect, and  the  principal  debtor  to  pay  the  debt  out  of  any  fund 
the  debtor  has  subject  to  the  debt,  and  when  the  surety  pays  it 
he  has  a  right  to  be  subrogated  to  all  the  rights  and  sureties  of 
the  creditor. 

In  the  case  of  Brownvs.  Glascock's  Administrator,  1  Bob.,  461, 
(2d  edition,  486).  A  personal  decree  against  an  administrator 
being  recovered  by  a  creditor  of  the  decedent,  the  administrator 
appeals,  giving  an  appeal  bond  with  surety ;  the  decree  being 
affirmed,  an  arrangement  is  made  between  the  creditor  and  the 
surety  in  the  appeal  bond,  by  which  the  decree  is  transferred  to 
the  surety,  who  makes  a  part  of  the  amount  due  thereon  by  ex- 
ecution against  the  administrator,  and  then  brings  an  action  on 
the  administration  bond,  in  the  name  of  the  creditor  as  relator, 
against  the  surety  therein  bound,  in  which  action  a  judgment  is 


Citations  to  the  Code  of  Virginia.  541 

recovered  for  the  balance  due  on  the  affirmed  decree,  being  less 
than  the  amount  of  damages  incurred  by  the  appeal.  Held: 
The  surety  in  the  administration  bond  has  no  claim  to  be  sub- 
stituted to  the  remedy  of  the  creditor  on  the  appeal  bond,  and 
equity  will  not  interfere  in  his  favor  by  enjoining  the  judgment. 

In  the  case  of  Bohinson  et  als.  vs.  Sherman  et  als.,  2  Grat., 
178,  decided  July,  1845,  it  was  held:  The  surety  of  a  joint 
debtor  in  a  forthcoming  bond  becomes,  upon  the  forfeiture 
thereof,  surety  for  the  debt,  and  where  he  has  discharged  it,  is 
entitled  to  be  substituted  to  all  the  rights  of  the  creditor  against 
the  original  debtors  subsisting  at  the  time  he  became  so  bound 
for  the  debt.  The  surety  in  a  forthcoming  bond  is  entitled  to 
recover  from  the  original  debtors  the  principal,  interest  and 
costs  of  the  original  judgment,  but  not  the  costs  incurred  by  the 
execution  and  forfeiture  of  the  forthcoming  bond.  The  original 
debtors  are  each  bound  for  the  whole  amount  of  the  debt  to 
the  surety  in  the  forthcoming  bond  who  discharges  it. 

In  the  case  of  Bently  vs.  Harris  s  Administrators,  2  Grat., 
357,  decided  October,  1845,  it  was  held  :  A  principal  debtor  in 
a  judgment  obtains  an  injunction  thereto,  and  executes  an  in- 
junction bond  with  a  third  person  as  siirety,  the  surety  in  the 
judgment  not  being  a  party  to  the  injunction.  Upon  a  dissolu- 
tion of  the  injunction,  the  surety  in  the  injunction  bond  is  liable 
for  the  debt  enjoined  before  the  surety  in  the  judgment.  The 
surety  in  the  injunction  bond  being  held  insufficient,  and  an- 
other bond  being  executed  with  other  sureties,  upon  a  dissolu- 
tion of  the  injunction  the  sureties  in  both  bonds  are  equally 
liable. 

In  the  case  of  Leake  vs.  Fery^ison,  2  Grat.,  419,  decided  Jan- 
uary, 1846,  it  was  held :  On  a  joint  judgment  against  several, 
the  service  of  a  ca.  sa.  on  one,  and  the  execution  and  forfeiture 
of  a  forthcoming  bond  by  him,  does  not  extinguish  the  lien  of 
the  judgment  upon  the  land  of  the  others. 

In  such  a  case,  the  party  upon  whom  the  ca.  sa.  was  served 
and  who  executed  the  forthcoming  bond,  having  been  a  surety 
of  the  principal  debtor  in  the  judgment,  his  surety  in  the  forth- 
coming bond,  having  paid  the  debt,  is  entitled  to  be  substituted 
to  the  creditor's  remedies  against  the  land  of  the  principal 
debtor;  and  this  though  the  land  was  sold  by  the  principal 
debtor,  and  had  come  into  the  hands  of  a  hona  fide  purchaser 
for  value  without  notice  before  the  service  of  the  ca.  sa. 

In  the  case  of  Roders  vs.  McClure,  4  Grat.,  81,  decided  July, 
1847,  it  was  held :  A  judgment-debtor  having  obtained  an  in- 
junction to  the  judgment,  which  was  afterwards  dissolved,  and 
the  surety  in  the  injunction  bond  having  been  sued  thereon,  and 
judgment  recovered  against  him,  which  he  has  discharged,  he  is 
entitled  to  the  benefit  of  the  creditor's  judgment  lien. 


642  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Pi^eston  vs.  Preston^  4  Grat.,  88,  decided  July, 
1847,  it  was  held :  One  surety  of  an  insolvent  principal  is  en- 
titled to  contribution  from  his  co-sureties ;  and  if  all  the  sureties 
are  solvent,  each  is  bound  for  his  share  of  the  sum  advanced 
and  paid  to  release  them  from  a  common  burden.  A  judgment 
having  been  recorded  against  one  surety,  and  an  execution  levied 
on  his  property,  he  executed  a  forthcoming  bond  with  another 
of  the  sureties,  against  whom  no  judgment  had  then  been  ob- 
tained, as  his  surety  in  the  forthcoming  bond,  and  the  bond  is 
forfeited.  The  surety  in  the  forthcoming  bond,  having  paid  the 
debt,  is  entitled  to  contribution  from  the  other  sureties  in  the 
original  bond.  The  general  rule  is,  that  if  one  surety  is  insol- 
vent his  share  shall  be  apportioned  among  the  solvent  sureties, 
but  the  surety  in  the .  forthcoming  bond  having,  by  executing 
that  bond,  released  the  property  of  the  principal  in  said  bond, 
and  that  principal  having  become  insolvent,  his  surety  will  not 
be  entitled  to  recover  from  the  other  sureties  in  the  original  bond 
any  part  of  the  share  of  the  said  principal  in  the  forthcoming 
bond,  as  one  of  the  sureties  in  the  original  bond.  The  surety 
in  the  forthcoming  bond  is  entitled  to  a  decree  for  the  costs  of 
awarding  the  execution  on  said  bond,  neither  against  the  prin- 
cipal in  the  original  bond,  nor  his  sureties,  but  onl}'  against  the 
principal  in  the  forthcoming  bond. 

In  the  case  of  Stephenson  vs.  Traveners,  9  Grat.,  398,  decided 
September  6,  1852,  it  was  held :  A  surety  whose  principal  is 
dead  may  file  a  bill  quia  timet  and  against  the  creditor  and  the 
executor  of  the  debtor,  to  compel  the  latter  to  pay  the  debt,  so 
as  to  exonerate  the  surety  from  responsibility.  He  may  enforce 
for  his  exoneration  any  lien  of  the  creditor  on  the  estate  of  his 
principal,  and  may  bring  any  suit  in  equity  which  the  creditor 
could  bring  for  a  settlement  of  the  administration  account  on 
the  estate  of  the  deceased,  and  for  the  administration  of  the 
assets,  whether  legal  or  equitable ;  but  the  creditor  must  be  a 
party,  that  he  may  receive  the  money  when  it  is  recovered. 

In  the  case  of  Hill  vs.  Manser  et  als.,  11  Grat.,  522,  decided 
July,  1854,  it  was  held :  A  surety  in  a  forfeited  forthcoming 
bond  is  a  surety  for  the  debt ;  and  when  he  pays  it  as  such 
surety  he  is  entitled  to  all  the  rights  of  the  creditor  against  the 
original  debtor  subsisting  at  the  time  he  became  bound  for  the 
debt;  and  the  judgment  for  the  benefit  of  the  surety  so  paying 
is  not  extinguished,  but  transferred  with  all  its  obligatory  force 
against  the  principal,  and  constitutes  a  legal  lien  upon  his  real 
estate  owned  at  the  date  of  the  judgment  or  afterwards  acquired. 

The  surety  in  the  forthcoming  bond  paj-s  to  the  creditor  a 
sum  certain  on  the  execution  issued  on  the  bond  against  the 
principal  and  himself,  and  takes  a  receipt  as  money  paid  by 
himself.     The  evidence  of  payment  afforded  by  the  receipt  will 


Citations  to  the  Code  of  Virginia.  543 

not  be  repelled  by  proof  of  loose  declarations  that  he  had  loaned 
the  money  to  the  principal  debtor,  who  was  his  brother,  so  as 
to  deprive  him  of  the  rights  and  remedies  of  the  creditor. 

The  creditor  having  taken  a  deed  of  trust  from  the  principal 
debtor  to  secure  his  debt,  and  the  debtor  having  subsequently 
given  another  deed  of  trust  upon  the  same  or  other  property  to 
secure  debts  due  to  a  third  party,  one  of  which  was  for  money 
loaned  to  pay  a  balance  due  upon  the  judgment  of  which  this 
third  party  had  notice,  the  surety  in  the  forthcoming  bond  is 
entitled  to  have  the  property  embraced  in  the  first  deed  of  trust 
applied  to  satisfy  the  amount  he  has  paid,  with  interest  on  so 
much  thereof  as  went  to  discharge  the  principal  of  the  debt, 
and  if  that  property  does  not  discharge  it,  to  have  the  land  em- 
braced in  the  second  deed  subjected  to  discliarge  the  balance. 

In  the  case  of  Clevinger  vs.  Miller,  27  Grat.,  740,  decided 
September  21,  1876,  it  was  held:  A  sheriff  or  other  officer  who 
pays  an  execution  in  his  hands  for  collection,  without  an  assign- 
ment at  the  time  of  the  judgment  on  which  it  is  founded  or  the 
debt,  is  not  entitled  to  be  subrogated  to  the  lien  of  the  creditor 
whose  debt  he  has  paid,  as  against  other  creditors  having  liens 
by  judgment  or  otherwise. 

In  the  case  of  Cromer  vs.  Cromer's  Adm,inistrators,  29  Grat., 
280,  decided  November,  1877.  A  bond  on  which  principal  and 
surety  are  both  bound,  once  paid  by  the  surety  in  the  life- 
time of  the  principal  without  assignment  by  the  creditor,  or  an 
agreement  to  assign,  is  forever  dead  as  to  a  security,  as  well  in 
equity  as  at  law.     There  can  be  no  subrogation  in  such  a  case. 

In  the  case  of  Christmans  Administrdtors  vs.  Harman  et  als., 
29  Grat.,  494,  decided  December  6,  1877,  it  was  held:  A  surety 
on  an  injunction  bond  for  the  second  endorser  of  a  negotiable 
note,  who  has  been  compelled  to  pay  said  note,  is  entitled  to 
recourse  against  the  first  endorser  to  recover  the  amount  so  paid. 

Such  surety  is  not  barred  from  such  recourse  by  the  fact  that 
in  a  suit  in  equity  brought  by  the  holder  of  such  note  against 
the  maker  and  endorsers,  a  decree  was  rendered  in  favor  of  the 
first  endorser. 

Nor  is  such  surety  barred  of  such  recourse  by  the  fact  that, 
in  another  suit  in  equity  brought  by  the  second  endorser  to 
establish  the  liability  to  him  of  the  first  endorser,  the  bill  was 
dismissed  upon  answer  and  demurrer,  there  being  set  out  sev- 
eral causes  of  demurrer,  of  which  some  went  to  the  merits  of 
the  controversy  and  others  did  not,  and  it  not  appearing  for 
what  cause  the  bill  was  dismissed. 

In  the  case  of  Rohertson  vs.  Triggs  [Administrator)  et  als.,  32 
Grat.,  76,  decided  July,  1879,  it  was  held:  Two  of  the  sureties 
of  a  United  States  collector  who  has  made  default  and  died  in- 
solvent are  entitled  to  be  subrogated  to  the  right  of  priority  of 


544  Citations  to  the  Code  of  Virginia. 

the  United  States  in  tlie  payment  of  the  debt,  when  they  have 
paid  it,  as  against  the  estate  of  another  surety  who  had  died 
before  the  insolvency  of  the  collector.  In  such  case,  there 
having  been  six  sureties  to  the  bond,  two  of  whom  were  insol- 
vent at  the  time  of  the  collector's  death,  and  continued  to  be  so 
until  their  death,  the  two  sureties  who  paid  the  debt  are  entitled 
to  recover  from  the  estate  of  the  deceased  surety  one-fourth  of 
what  they  have  paid. 

The  principles  of  equity  in  relation  to  subrogation  are  not 
affected  by  the  United  States  statute,  1  Brightley's  Dig.  of 
Laws,  382,  Section  266,  which  provides  substitution  for  the 
surety  against  the  estate  of  the  principal  where  the  surety  pays 
the  debt,  as  to  which  the  statute  gives  the  United  States  priority 
of  right  to  satisfaction. 

In  the  case  of  Gruhbs  vs.  Wysors,  32  Grat.,  127,  decided  Au- 
gust 7,  1879,  it  was  held :  Whilst  a  surety  who  pays  a  debt  of 
his  principal  will  ordinarily  be  subrogated  to  all  of  the  lien 
rights  of  the  creditor,  when  the  latter  has  no  longer  occasion  to 
hold  them  for  his  own  protection,  equity  will  never  displace 
the  creditor  to  his  prejudice  merely  to  give  the  surety  a  better 
footing. 

In  the  case  of  Shervian's  Administrator  vs.  Shaver  et  als.,  75 
Va.,  1,  decided  November  11,  1880.  In  October,  1859,  K.  re- 
covered a  judgment  against  S.,  on  which  execution  was  issued, 
which  went  into  the  hands  of  C,  the  deputy  of  K.,  the  sheriff, 
and  was  levied  by  C.  on  the  property  of  S.  which  he  left  with 
G.,  who  converted  it  to  his  own  use.  R.  moved  against  K.,  and 
recovered  a  judgment  for  the  amount  of  his  judgment  against 
S.,  which  K.  paid.  Held :  G.  is  not  entitled  to  be  subrogated 
to  the  lien  of  R.'s  judgment  against  G.,  as  against  junior  judg- 
ment creditors  of  S. 

A  sheriff  who  by  his  act,  or  the  act  of  his  deputy,  in  viola- 
tion of  ofl&cial  duty,  has  suffered  property  liable  to  levy,  and 
which  has  been  levied  on  by  him  or  his  deputy,  to  be  converted 
by  the  debtor  to  his  own  use,  cannot  be  allowed  as  against  and 
to  the  prejudice  of  creditors  holding  liens  on  the  debtor's 
remaining  property  to  have  indemnify  thereout  to  the  use  of 
another,  by  substitution  (if  admissible  in  any  case),  for  what  he 
has  been  compelled  to  pay  on  account  of  official  delinquency  or 
misconduct. 

In  the  case  of  Bhea  et  als.  vs.  Preston,  75  Va.,  757,  decided 
July  21,  1881,  it  was  held:  Where  the  accommodation  endorser 
or  surety  of  a  note,  on  which  judgment  has  been  obtained,  pur- 
chases real  estate  from  the  principal  debtor,  who  retains  a  hen 
for  the  purchase-money,  and  it  is  a  matter  of  contract  between 
them  at  the  time  of  the  sale  that  the  endorser  or  surety  shall 
assume  the  payment  of  the  judgment,  the  relation  of  the  parties 


Citations  to  the  Code  of  Virginia.  545 

inter  se  is  changed.  The  endorser  or  surety  becomes  the  real 
debtor,  and  the  principal  debtor  the  surety ;  and  the  latter  has 
the  right  to  require  that  the  lien  of  the  judgment  shall  be  en- 
forced for  his  exoneration  against  the  real  debtor. 

In  the  case  of  Bank  of  The  Old  Doininion  vs.  Allen  et  als., 
76  Ya.,  200. 

1.  Subrogation  endorsed  for  accommodation  paying  off  judg- 
ment against  himself  of  and  the  maker  on  protested  negotia- 
ble note,  is  entitled  to  be  subrogated  to  all  rights  of  the  holder. 
He  is  under  no  obligation  to  appeal  from  the  judgment,  as  he 
could  not  know  that  relief  could  be  thus  obtained.  The  law 
imposes  no  such  unreasonable  burden  on  a  surety. 

2.  Idem. — Merger. — At  different  terms  separate  judgments 
were  had  against  endorser  and  maker.  On  the  judgment  against 
endorser  a  judgment  was  obtained  in  Illinois,  which  judgment 
endorser  satisfied.  Held:  This  did  not  extinguish  the  lien  of 
the  judgment  against  the  maker,  and  eo  iiistantl  endorser  paid 
it,  he  and  his  assignees  were  entitled  to  be  subrogated  to  lien  of 
that  judgment. 

In  the  case  of  Ilauser,  Cruardian  ad  litem,  etc.,  vs.  King  et 
als.,  76  Ya.,  731. 

Subrogation. — Surety. — Creditor. — Surety  is  entitled  to  all 
means  of  payment  held  by  creditor  against  principal  debtor; 
and  creditor  hath  reciprocal  rights  to  all  securities  which  prin- 
cipal debtor  may  have  furnished  for  surety's  indemnity. 

In  the  case  of  Rosenhaum  vs.  Goodman,  78  Ya.,  121,  decided 
December  6,  1883.  This  principle  appUes  on  payment  of  debt 
or  duty  by  one  secondarily  liable,  and  gives  him  right  to  enforce 
the  debt  against  all  whose  liability,  as  compared  with  his  own, 
is  primary. 

In  the  case  of  Penn  vs.  Ingles,  82  Ya.,  65,  decided  June  17, 
1886,  it  was  held :  The  general  rule  is,  that  creditor  is  under  no 
obligation  to  exhaust  his  remedies  against  principal  before  re- 
sorting to  surety.  But  when  he  goes  into  equity  to  enforce  his 
debt  against  principal  and  sureties,  the  burden  will  be  laid  first 
on  the  principal. 

Surety  is  entitled  to  enforce  every  security  for  the  debt  which 
creditor  had  against  principal. 

This  is  the  case  cited  from  10  Ya.  Law  Journal,  531. 

In  the  case  of  Croughton  vs.  Duval,  3  Call,  70  (2d  edition,  60), 
decided  October  29,  1801,  it  was  held  ohite7'  dictum:  A  forbear- 
ance without  the  consent  of  the  surety,  under  a  definite  arrange- 
ment as  to  the  time  of  forbearance,  releases  surety. 

In  the  case  of  Hill  vs.  Bull,  1  Ya.  (Gilmer),   149,  decided 
December  20,  1820,  it  was  held :  Giving  further  time  for  pay- 
ment to  the  principal,  without  the  consent  of  the  surety,  dis- 
charges the  surety  from  all  liability. 
35 


546  Citations  to  the  Code  of  Vibginia. 

In  the  case  of  Norris  vs.  Crumney  et  als.,  2  Rand.,  323,  de- 
cided February,  1824,  it  was  held :  An  indulgence  granted  by 
a  creditor  to  a  principal  debtor  will  not  discharge  the  sureties 
of  the  latter,  unless  the  creditor  has  bound  himself  in  law  or 
equity  not  to  pursue  his  remedy  against  the  principal  for  any 
length  of  time. 

In  the  case  of  Zoop  vs.  Summers,  3  Rand.,  511,  decided  Octo- 
ber, 1825.  If  the  obligee  has  parted  with  any  security  he  may 
have  in  his  hands  by  which  the  debt,  or  a  part  of  it,  might  have 
been  paid,  the  surety  will  be  discharged  jt?ro  tanto. 

In  the  case  of  Hunter's  Administrators,  etc.,  vs.  Jett,  4  Rand., 
104,  decided  February  1826,  it  was  held :  A  surety  will  not  be 
discharged  by  an  indulgence  granted  by  the  creditor  to  the  prin- 
cipal debtor,  unless  such  indulgence  ties  up  the  hands  of  the 
creditor  from  pursuing  the  debtor  at  law.  Nor  will  the  surety 
be  discharged  from  his  responsibility  unless  he  demands  such 
discharge  in  his  bill,  and  states  such  a  case  as  would  entitle 
him  to  it. 

In  the  case  of  McKenny's  Executors  vs.  Waller,  1  Leigh,  434, 
decided  October,  1829,  it  was  held :  A  mere  indulgence  given  by 
a  creditor  to  a  principal  debtor,  the  creditor  not  binding  himself 
to  suspend  his  proceedings  against  the  principal  for  any  time, 
though  such  indulgence  be  given  at  the  very  time  the  sheritf  is 
about  to  levy  the  execution  on  the  principal's  property,  and 
though  in  consequence  of  that  indulgence  the  principal  is  ena- 
bled to  remove  his  property  out  of  the  reach  of  future  process, 
does  not,  even  in  equity,  discharge  the  surety. 

In  the  case  of  Alcock  vs.  Hill,  4  Leigh,  622,  decided  Decem- 
ber, 1833.  A  creditor  suspends  execution  on  a  forthcoming 
bond  for  several  years,  but  does  so  without  consideration,  and 
he  nowise  binds  himself  to  suspend  execution  for  any  definite 
time.  The  principal  and  all  the  sureties  but  one  become  insol- 
vent, and  then  the  creditor  sues  out  execution  against  the 
solvent  surety.  Held:  The  surety  is  not  entitled  to  relief  in 
equity. 

In  the  case  of  Hamsberger  vs.  Geiger,  3  Grat.,  144,  decided 
July,  1846,  it  was  held :  A  conditional  agreement  by  the  holder 
to  give  time  to  the  principal  obligor  will  not  bind  the  holder, 
unless  the  condition  is  strictly  complied  with,  and  therefore, 
though  such  agreement  was  without  the  consent  of  the  surety, 
yet  if  the  condition  has  not  been  complied  with,  the  surety  is  not 
released. 

In  the  case  of  Humphrey  vs.  Hitt,  6  Grat.,  509,  decided  Jan- 
uary, 1850,  it  was  held:  A  mere  countermand  of  an  execu- 
tion by  a  creditor  after  it  goes  into  the  hands  of  a  sheriff,  but 
before  it  is  levied,  does  not  release  a  surety  of  the  execution 
debtor. 


I 


Citations  to  the  Code  of  Virginia.  547 

In  the  case  of  Walker  et  als.  vs.  The  Commonwealth,  18  Grat., 
13,  decided  October,  1867,  it  was  held :  A  plaintiff  may  always, 
with  the  consent  of  all  the  defendants,  abandon  a  levy  upon  the 
property  of  all  or  any  of  them,  and  afterwards  sue  out  a  new 
execution. 

If  the  defendants  in  an  execution  be  a  principal  and  his  sure- 
ties, and  the  property  levied  on  be  that  of  the  sureties,  the 
plaintiff  may,  with  the  consent  of  the  sureties  only,  abandon  the 
levy,  and  afterwards  sue  out  executions  against  all  the  de- 
fendants. 

In  the  case  of  Shannon  vs.  McMullen,  25  Grat.,  211,  decided 
June,  1874,  it  was  held :  It  is  a  settled  law  that  a  surety  is  en- 
titled to  be  relieved  from  his  liability  to  pay  the  debt  of  his 
principal,  either  in  toto  or  pro  t<into,  as  the  case  may  be,  if  the 
creditor,  without  the  consent  of  the  surety,  make  a  new  contract 
with  the  principal,  founded  on  valuable  consideration,  to  post- 
pone the  day  of  payment  of  a  debt  for  a  certain  period,  how- 
ever short,  beyond  the  day  on  which  it  was  to  be  paid  by  the 
terms  of  the  contract  on  which  the  surety  was  liable,  or  if  the 
creditor,  without  the  consent  of  the  surety,  release  any  lien  which 
he  may  have  on  any  property  of  the  principal  for  the  security 
of  the  debt.  In  the  first  case  the  relief  of  the  surety  is  in  toto, 
without  regard  to  the  extent  of  the  damage  actually  sustained 
by  the  surety  by  reason  of  such  new  contract,  or  whether  any 
such  damage  was  sustained  or  not ;  and  in  the  latter  case,  being 
in  toto  or  pro  tanto,  according  as  the  value  of  the  property  re- 
leased was  as  much  as,  or  less  than,  the  amount  of  the  debt. 

See  the  case  of  Harrison's  Executor  vs.  Price  {Executor),  25 
Grat.,  553,  cited  ante,  2890. 

In  the  case  of  Commonwealth  hy,  etc.  vs.  Holmes,  25  Grat.,  771, 
decided  January,  1875.  In  July,  1871,  H.  became  the  surety 
of  B.  as  collector  of  township  B.  At  that  time  the  taxes  for 
that  year,  by  law,  went  into  the  hands  of  the  collector  on  the 
first  of  September,  and  were  to  be  accounted  for  to  the  county 
treasurer  on  the  first  of  December.  After  the  execution  of  the 
bond  by  H.  there  were  several  extensions,  by  joint  resolutions 
and  statutes  of  the  General  Assembly,  of  the  time  in  which  col- 
lectors should  make  their  settlements  with  the  county  treasurer. 
Held :  That  though  it  is  true  that  the  law  at  the  date  of  the 
contract  enters  into  and  forms  part  of  the  contract,  yet  laws 
which  are  merely  directory  to  officers  of  the  government  form 
no  part  of  the  contract,  and  the  extension  of  the  time  as  afore- 
said does  not  release  the  surety,  H. 

In  the  case  of  Smith  et  als.  vs.  The  Commonwealth,  25  Grat., 
780,  decided  January,  1875,  it  was  held:  The  surety  of  a  public 
collector  or  treasurer  is  not  discharged  from  liability  for  his 
principal  on  his  official  bond,  by  an  act  of  Assembly  passed 


548  Citations  to  the  Code  of  Virginia. 

subsequent  to  the  execution  of  the  bond,  without  the  surety's 
assent,  extending  the  time  in  which,  by  the  law  in  force  at  the 
date  of  the  bond,  the  officer  was  required  to  settle  his  accounts 
and  make  payment  of  the  public  money  in  his  hands. 

The  relations  prescribed  i)y  law  for  the  settlement  of  such 
accounts  at  stated  periods,  being  intended  for  the  benefit  of  the 
government,  to  secure  punctuality  and  promptness  in  its  officers, 
are  directory  merely,  and  do  not  enter  into  and  form  a  part  of 
the  surety's  contract,  so  as  to  prevent  the  legislature  from  alter- 
ing the  time  of  settling  at  pleasure,  without  the  surety's  assent, 
and  therefore,  from  the  nature  of  the  officer's  obligations  and 
duties,  and  of  the  conditions  of  his  bond,  such  extension  does 
not  operate  as  a  discharge  of  the  surety. 

In  the  case  of  Adams  et  als.  vs.  Logan  et  als.,  27  Grat.,  201, 
decided  January,  1876.  A.  apd  B,  are  sureties  of  W.  in  a  bond 
to  L.  for  three  thousand  dollars  executed  in  1858.  In  May, 
1862,  L.  lent  to  W.  seven  thousand  five  hundred  dollars  in  Con- 
federate money,  and  took  his  bond  paj^able  in  two  years  with 
interest,  and  W.  executed  a  deed  by  which  he  conveyed  to  S. 
real  and  personal  estate  in  trust  to  secure  both  debts,  and  it 
provided  that  upon  the  prompt  payment  annually  of  the  in- 
terest upon  the  two  bonds  W.  would  keep  quiet  possession  of 
the  property  for  two  years.  W.  did  not  pay  the  interest.  Held : 
W.  not  having  paid  the  interest,  the  parties  were  left  in  the  same 
situation  and  with  the  same  rights  and  obligations  as  if  the 
agreement  to  extend  the  time  had  not  been  made. 

The  agreement  only  operated  to  postpone  a  sale  of  the  pro- 
perty under  the  deed  of  trust.  It  did  not  tie  up  the  hands  of 
L.  from  pursuing  his  debtor  W.  at  law. 

If  D.  had  sued  W.  at  law,  and  recovered  judgment,  and  levied 
an  execution  on  the  personal  property  embraced  in  the  deed, 
.  he  might  thereby  have  forfeited  the  benefit  of  that  security  or 
subjected  himself  to  an  action  for  damages,  but  a  court  of  equity 
would  not  interfere  to  prevent  a  sale  of  the  property  under  the 
execution,  upon  the  mere  contract  to  pay  interest  on  the  debt. 
But  if  the  agreement  operated  as  an  extension  of  the  time  of 
payment  of  the  debt,  as  the  act  of  the  29th  of  March,  1862, 
known  as  the  stay  law,  forbade  the  issue  of  execution  upon  a 
judgment,  and  A.  was  under  no  obligations  to  the  sureties  to 
raise  the  question  of  its  constitutionality,  the  agreement  did  not 
have  the  slightest  effect  upon  the  rights  and  remedies  or  obliga- 
tions of  any  of  the  parties. 

The  principle  upon  which  an  agreement  for  an  extension  of 
time  discharges  a  surety  is,  that  the  creditor  thereby  deprives 
the  surety  of  the  means  of  relieving  himself  by  paying  the 
debt  and  proceeding  immediately  against  the  principal,  or 
by  his   filing  his    bill    quia   timet    to   compel    the  debtor   to 


Citations  to  the  Code  of  Virginia.  549 

pay  the  debt,  or  by  notice  to  the  creditor  under  the  statute. 
The  sureties  cannot  be  discharged  by  an  act  which  in  no 
mauner  affected  their  rights  or  impaired  the  rights  of  the 
creditor. 

In  the  case  of  Coffman  et  als.  vs.  Moore's  Executors^  29  Grat., 
244,  decided  September,  1877.  M.  holds  the  bond  of  C.  and  of 
E.  and  three  others  for  thirteen  thousand  eight  hundred  dollars, 
in  which  C.  is  principal  and  E.  and  the  three  others  are  sureties, 
due  in  September,  1869.  On  the  17th  of  June,  1870,  C.  and  M. 
enter  into  an  agreement  under  seal,  by  which  C.  sells  to  M.  his 
farm  of  six  hundred  and  twenty-eight  acres  at  fifty  dollars  per 
acre  in  the  present  currency,  the  whole  to  be  due  on  the  first  of 
September  next,  when  possession  was  to  be  delivered.  And  C. 
agreed  that  M.  should  be  paid  all  claims  binding  on  the  land, 
and  the  claims  that  M!  holds  against  C,  and  C.  agreed  to  receive 
as  money  a  note  M.  held  against  the  estate  of  J.,  who  was  one  of 
the  sureties.  At  this  time  C.  was  very  much  involved  and  pro- 
bably insolvent.  M.  a  short  time  before  the  first  of  September 
ascertains  C.'s  condition,  and  fearing  he  will  either  go  or  be  put 
into  bankruptcy,  and  that  his  debt  may  be  jeopardized,  declines 
to  carry  out  the  contract,  and  a  few  days  after  the  first  of  Sep- 
tember C.  conveys  the  land  in  trust  to  secure  other  debts.  M. 
having  recovered  judgment  against  C,  E.  and  two  of  the  other 
sureties,  the  sureties  enjoin  it  on  the  ground  that  M.,  having 
under  his  contract  bound  himself  not  to  enforce  his  debt  until 
the  first  of  September,  and  by  this  act  failed  to  have  his  debt 
satisfied  out  of  the  land,  had  discharged  the  sureties.  Held: 
M.  was  not  bound  by  the  contract  to  sue  upon  the  bond  before 
the  first  of  September,  and  was  not  bound  under  the  circum- 
stances to  carry  out  the  contract ;  and  therefore  the  sureties  are 
not  released. 

In  the  case  of  Richmond  cfi  Petersbiirg  Railroad  Company 
y^,'.  Kasey  et  nls.^  30  Grat.,  218,  decided  March,  1878.  K.,  as  a 
general  freight  and  ticket  agent  of  the  Richmond  &  Peters- 
burg Railroad  Company,  gave  a  bond  with  sureties.  The  rule 
of  the  company  was,  that  he  should  settle  monthly,  and  though 
there  was  no  rule  on  the  subject,  it  was  expected  that  freight 
and  tickets  should  be  paid  for  in  cash.  K.  seems  to  have  given 
credit  at  his  own  risk  to  such  persons  as  he  chose,  for  the 
freight,  and  this  was  known  by  the  president,  who  remonstrated 
with  him  for  doing  it.  He  did  not  settle  his  accounts  properly, 
and  the  deficit  grew  for  eighteen  months,  when  he  was  dismissed. 
There  was  no  fraudulent  concealment  of  these  facts  by  the  offi- 
cers of  the  company,  though  the  sureties  of  K.  were  not  in- 
formed of  them.  Held :  The  sureties  are  not  released  from 
their  liability  for  the  default  of  K.  by  the  knowledge  of  the 
officers  of  the  company  and  that  he  gave  credit  for  the  freight 


550  Citations  to  the  Code  of  Virginia. 

delivered.  And  if  there  had  been  a  rule  that  freight  should  be 
paid  for  in  cash,  and  that  rule  had  been  changed  after  the 
execution  of  the  bond,  that  would  not  have  released  the  sure- 
ties. There  having  been  no  fraudulent  concealment  of  the  fact 
that  K.  did  not  settle  promptly,  the  failure  to  inform  his  sureties 
of  the  fact  did  not  relieve  them  from  their  liability  for  the  de- 
fault of  K. 

The  rules  and  regulations  of  a  corporation  made  for  the  gov- 
ernment of  the  conduct  of  its  officers  do  not  become  terms  and 
conditions  of.  the  bond  of  its  officers  unless  such  an  intention  is 
expressed  on  the  face  of  the  bond. 

In  the  case  of  Callaway' s  Executor  vs.  Prices  Administrator 
et  als.,  32  Grat.,  1,  decided  July,  1879.  In  January,  1858,  L. 
as  principal,  and  P.  as  surety,  executed  to  C.  a  bond  for  nine 
hundred  and  twenty-five  dollars,  payable  in  twelve  months.  P. 
died  before  the  note  came  due,  and  L.  qualified  as  his  adminis- 
trator. In  December,  1860,  C.  sued  L.  upon  the  bond,  and 
at  the  earnest  solicitation  of  L.,  C.  accepted  from  him  three 
negotiable  notes,  satisfactorily  endorsed,  payable  in  three,  six 
and  nine  months,  for  the  amount  of  the  bond,  and  in  January,. 
1861,  dismissed  his  suit ;  one  hundred  and  fifty  dollars  was  paid 
on  the  first  note  and  it  was  twice  renewed ;  the  second  was  also 
renewed.  No  more  was  paid  on  them,  and  both  principal  and 
sureties  on  the  notes  had  become  insolvent  before  1866,  when 
C.  sued  upon  them.  He  then  filed  a  bill  to  subject  the  estate  of 
P.  to  the  payment  of  the  bonds.  Held :  If  upon  accepting  the 
notes  the  agreement  was  to  give  time  upon  the  payment  of  the 
debt,  then  the  surety  in  the  note  was  released,  and  the  estate  of 
P.  is  not  liable  to  pay  the  debt.  Though  there  was  no  agree- 
ment to  give  time  upon  the  payment  of  the  debt,  the  legal  effect 
of  accepting  the  notes  was  to  suspend  the  right  of  action 
on  the  bond  during  the  period  allowed  for  the  payment  of 
the  notes;  and  that  operated  as  a  release  of  the  surety  in  the 
bond. 

In  the  case  of  Dey  {Receiver)  vs.  Martin,  78  Va.,  1,  decided 
March  15,  1883,  it  was  held :  It  is  well  settled  that  any  change 
in  the  contract  made  without  surety's  consent,  however  imma- 
terial, and  even  if  for  his  advantage,  discharges  him. 

In  the  case  of  Christian  <&  Gunn  vs.  Keen,  80  Va.,  369,  de- 
cided April  2,  1885,  it  was  held,  p.  376 :  Surety  is  discharged 
by  any  change  of  contract,  however  immaterial,  if  made  without 
surety's  consent. 

Where  the  wife  charges  her  property  to  secure  a  debt  of  her 
husband,  she  becomes  the  surety  of  her  husband,  and  is  entitled 
to  all  the  rights  of  a  surety. 

Payment,  not  acceptance  merely,  entitles  acceptor  to  sue  the 
drawer. 


Citations  to  the  Code  of  Virginia.  551 

A  credit  on  the  account  of  the  principal  debtor  should  dis- 
charge pro  tanto  the  lien  on  the  surety's  estate. 

In  the  case  of  Kyger  vs.  Slpe  {Trustee)^  89  Va.,  507,  decided 
December  15,  1892,  it  was  held :  If  principal  in  an  obligation 
is  not  liable  by  reason  of  a  purely  personal  defence,  in  the 
nature  of  a  privilege  or  protection,  as  infancy  or  coverture,  then 
the  surety  is  not  released,  but  the  contract  subsists  as  against 
him  in  full  force. 

Section  2895. 

In  the  case  of  McCormack'' s  Administrator  vs.  Obannon's  Ex- 
ecutor, 3  Munf.,  484,  decided  November  25,  1811,  it  was  held: 
A  court  of  equity  will  not  compel  a  surety  in  a  bond  to  con- 
tribute to  the  relief  of  his  co-surety  who  has  been  forced  to 
pay  the  debt,  unless  it  appear  that  due  diligence  was  used  with- 
out effect  to  obtain  reimbursement  from  the  principal  obligor, 
or  that  he  was  insolvent. 

In  tlie  case  of  Harrison  vs.  Laiie  et  als.,  5  Leigh,  414,  decided 
November,  1834.  W.,  deputy  of  S.,  sheriff  of  F.  county,  gives 
a  bond  to  his  principal,  with  five  sureties,  for  the  faithful  dis- 
charge of  the  office  of  deputy  sheriff,  but  S.  not  being  satisfied 
with  this  security,  W.  and  three  other  persons  as  sureties  give 
a  second  bond  to  S.,  with  like  conditions.  A  memorandum 
being  endorsed  on  this  second  bond  at  the  time  of  its  execution, 
in  conformity  with  a  previous  agreement  that  S.  should  not  re- 
sort to  the  second  bond  for  indemnity  for  the  misconduct  of  the 
deputy  in  office,  so  long  as  the  sureties  in  the  first  bond  should 
be  resident  in  the  State,  and  it  should  appear  that  he  could  be 
indemnified  without  recourse  to  the  sureties  in  the  second  bond, 
S.,  the  sheriff,  recovers  judgment  on  the  first  bond  against  the 
sureties  therein  bound,  for  the  amount  of  damages  sustained 
by  him  by  reason  of  the  deputy  sheriff's  misconduct  in  office. 
Held :  The  sureties  in  the  first  bond  have  no  right  to  contribu- 
tion from  the  sureties  in  the  second  bond. 

In  the  case  of  LangforcC s  Executor  vs.  Perrin,  5  Leigh,  552, 
decided  December,  1834.  A.,  B.  and  C.  are  sureties  for  D.  in  a 
bond  ;  judgment  is  recovered  against  D.,  the  principal,  and  the 
sureties  A.  and  B.,  but  not  against  the  other  surety,  C,  and  9.fi. 
fa.  being  sued  out  on  the  judgment,  and  leviSd  on  the  property 
of  D.,  the  principal,  he  gives  a  forthcoming  bond,  in  which  A. 
and  B.  and  another  person  join  him  as  sureties;  execution 
awarded  on  such  forthcoming  bond  is  levied  on  the  goods  of  A., 
one  of  the  sureties  in  the  original  bond,  as  well  as  in  the  forth- 
coming bond.  Held:  A.  has  no  right  to  contribution  from  C, 
his  co-surety  in  the  original  bond.  Judgment  recovered  and 
fi.  fa,  sued  out  against  D.,  principal  debtor,  and  A.  and  B.,  his 
sureties;  the  fi.  fa.  is  levied  on  the  goods  of  D.,  the  principal, 
who  gives  a  forthcoming  bond,  in  which  A.  and  B.  and  another 


552  Citations  to  the  Code  of  Virginia. 

person,  E.,  are  bound  as  D.'s  sureties,  and  on  execution  of  the 
forthcoming  bond  E.  is  compelled  to  pay  the  debt.  Held :  E. 
is  co-surety  with  A.  and  B.  for  D.  in  the  forthcoming  bond,  not 
surety  for  A.  and  B.  as  well  as  D.,  and  therefore  E.  is  entitled 
only  to  contribution  from  A.  and  B.  as  co-sureties,  not  to  full 
indemnity  from  them  as  principals. 

See  the  case  of  Preston,  vs.  Preston^  4  Grat.,  88,  ante,  Section 
2493. 

In  the  case  of  Wnyland  vs.  Tucker  et  als.,  4  Grat,,  267,  de- 
cided January,  1848,  it  was  held :  The  right  of  one  surety  to 
call  upon  his  co-surety  for  contribution  arises  from  a  principle 
of  equity  growing  out  of  the  relation  which  the  parties  have 
assumed  towards  each  other;  the  equity  springs  up  at  the  time 
of  entering  into  that  relation,  and  is  fully  consummated  when  the 
surety  is  compelled  to  pay  the  debt. 

The  principal  and  two  of  three  securities  in  a  bond  become  in- 
solvent, and  the  other  surety  paid  the  debt.  Previous  to  this 
payment^the  solvent  surety  had  executed  his  bond  for  less  than 
half  the  first  bond,  to  one  of  his  co-sureties,  who  had  conveyed 
it  in  trust  for  his  creditors.  After  the  payment  of  the  first-men- 
tioned debt  by  the  solvent  surety,  judgment  was  recovered 
against  him  on  his  own  bond ;  and  he  then  enjoined  the  judg- 
ment, claiming  to  offset  it  by  his  co-sureties'  portion  of  the  debt 
he  had  paid.  Held :  That  he  is  entitled  in  preference  to  the  as- 
signee of  his  bond. 

In  the  case  of  Tarr  vs.  Pavenscroft,  12  Grat.,  642,  decided 
September  11,  1855,  it  was  held:  One  of  two  sureties  of -an  in- 
solvent administrator  purchases  legacies  for  which  the  sureties 
are  bound  at  a  discount.  He  shall  only  charge  his  co-surety  for 
his  proportion  of  what  he  paid  for  the  legacies  and  of  the  ex- 
penses of  purchasing  them. 

In  the  case  of  Harnsberger  et  als.  vs.  Yancey  et  als.,  33  Grat., 
528,  decided  September,  1880,  it  was  held :  If  there  are  two 
parties  bound  as  a  principal  and  surety  for  a  debt,  and  a  third 
party  afterwards,  at  the  request  of  the  principal,  bind  himself 
as  surety  for  the  debt,  the  two  sureties,  in  the  absence  of  any 
agreement  to  the  contrary,  become  co-sureties  of  the  same  prin- 
cipal, and  this  relation  may  be  established  by  implication  from 
circumstances,  as  well  as  by  express  agreement.  But  where 
there  is  a  judgment  against  a  principal  and  his  surety,  and  a 
third  party,  at  the  instance  of  the  principal,  and  for  his  sole  bene- 
fit, and  without  the  assent  of  the  surety,  enters  as  surety  for  the 
principal,  in  an  obligation  the  effect  of  which  is  to  suspend  the 
execution  of  the  judgment,  and  thus  prejudice  the  rights  of  the 
first  surety,  the  equity  of  the  latter  (first  surety)  is  superior,  and 
the  second  would  not  be  entitled  to  contribution  from  the  first, 
and,  according  to  some  authorities,  the  first  would  be  entitled  to 


Citations  to  the  Code  of  ViKomiA.  553 

indemnity  from  the  second.  This  is  not  the  case  with  Y,  and  W. 
in  this  case. 

In  the  case  of  Sirother's  Administrator  et  als.  vs.  MicheWs 
Executor  et  als.,  80  Va.,  149,  decided  January  29,  1885,  it  was 
held :  Where  principal  is  insolvent,  surety  against  whom  judg- 
ment has  been  rendered  may  have  judgment  against  his  co- 
surety for  his  share  of  the  deljt.  But  unless  such  judgment  has 
been  rendered,  such  surety  cannot  have  judgment  against  his 
co-surety. 

In  the  case  of  Turner's  Administrator  vs.  Thorn  {Trustee),  89 
Ya.,  745,  decided  March  16,  1893,  it  was  held :  To  entitle  one 
joint  obligor  to  recover  from  his  co-obligor  the  amount  paid  by 
him  in  excess  of  his  proportion,  the  payment  must  have  been 
made  upon  a  debt  for  which  the  latter  was  legally  liable  at  the 
time  of  payment,  and  which  the  obligor  paying  was  compellable 
to  pay,  and  not  upon  a  debt  that  was  barred  as  to  the  obligor 
sought  to  be  charged,  and  who  may  be,  as  in  the  case  here,  a 
personal  representative,  forbidden  to  pay  under  Code  2676,  with- 
out making  himself  personally  liable  to  extent  of  such  payment. 


TITLE  XLl. 
CHAPTEE  CXXXVIL 

Section  2896. 

In  the  case  of  Parker  vs.  Elliott,  6  Munf.,  587,  decided  April 
€,  1820,  it  was  held:  Trespass  on  the  case  may  properly  be 
brought  by  a  father  for  the  loss  of  the  service  of  his  daughter, 
and  expenses  incurred  by  him  in  consequence  of  being  de- 
bauched and  got  with  child,  no  forcible  injury  to  himself  or  his 
property  being  alleged  in  the  declaration. 

In  the  case  of  Parker  vs.  Elliott,  1  Va.  (Gilmer),  33,  decided 
April  6,  1820,  it  was  held :  The  plaintiff  in  an  action  for  de- 
bauching his  daughter  may  elect  to  bring  trespass  or  case  for 
the  injury. 

In  the  case  of  White  vs.  Campbell,  13  Grat.,  573,  decided  Sep- 
tember 9,  1856,  it  was  held :  In  an  action  for  the  seduction  of 
plaintiff's  daughter,  to  enhance  the  damages  he  may  prove  that 
the  defendant  promised  to  marry  her  and  by  means  of  such 
promise  had  succeeded  in  debauching  her. 

In  the  case  of  Txe  vs.  Hodges,  13  Grat.,  726,  decided  March 
10,  1857,  it  was  held :  The  action  by  a  father  for  the  seduction 
of  his  daughter  is  founded  on  the  relation  of  master  and  servant, 
and  not  that  of  parent  and  child. 

In  such  action  the  declaration  must  allege  the  relation  of 
master  and  servant,  or  it  will  be  totally  defective  on  demurrer. 


554  Citations  to  the  Code  of  Virginia. 

The  only  change  made  by  the  act  in  relation  to  the  action  of 
seduction  is  to  dispense  with  proof  of  the  loss  of  service.  The 
act  does  not  give  the  action  in  any  case  where  it  did  not  lie' at 
common  law. 

When  a  daughter  over  the  age  of  twenty-one  years,  who  lives 
away  from  her  father's  house,  under  a  contract  for  her  services 
made  by  herself  after  she  came  of  age  for  her  own  benefit,  is 
seduced,  the  action  by  the  father  will  not  lie  either  at  common 
law  or  under  the  statute. 

In  the  case  of  Clem  vs.  Holmes,  33  Grat.,  722,  decided  Sep- 
tember, 1880.  In  an  action  by  a  father  for  the  seduction  of  bis 
daughter,  a  count  which  avers  she  is  under  twenty-one  years  of 
age  and  unmarried,  and  was  at  the  time  of  the  seduction,  and 
the  plaintiff  was  then  and  still  is  entitled  to  her  attention  and 
services.  Held :  This  is  a  sufficient  averment  of  the  relation  of 
master  and  servant  between  father  and  daughter. 

In  an  action  by  the  father  for  the  seduction  of  his  daughter, 
evidence  offered  by  the  father  of  the  pecuniary  order  of  the  de- 
fendant is  competent.  The  statute.  Code  of  1873,  Chapter  145, 
Section  1,  which  in  an  action  for  seduction  dispenses  with  any 
allegation  or  proof  of  the  loss  of  service  of  the  female  by  reason 
of  the  defendant's  wrongful  act,  does  not  alter  the  rule  as  to  the 
commencement  of  an  action  on  the  case  by  the  father ;  and 
when  the  daughter  lived  away  from  the  father's  house  at  the 
time  of  the  seduction,  but  returned  and  was  confined  and  nursed 
there,  the  statute  of  limitation  will  only  begin  to  run  from  that 
time. 

Section  2897. 

See  the  references  given  to  Section  3375. 

In  the  case  of  Brooks  vs.  Calloway,  12  Leigh,  466,  decided 
December,  1841,  it  was  held :  To  an  action  for  insulting  words,, 
under  the  statute  to  suppress  duelling,  no  plea  of  justification  can 
be  received. 

In  the  case  of  Moseley  vs.  Moss,  6  Grat.,  534,  decided  Jan- 
uary, 1850,  it  was  held:  In  actions  of  slander  under  the 
statute  the  truth  of  the  words  spoken  may  be  given  in  evi- 
dence in  mitigation  of  damages. 

In  an  action  for  a  statutory  slander,  the  plaintiff  must  declare 
under  the  statute.  If  plaintiff  does  not  declare  under  the  statute, 
his  declaration  must  set  out  a  common  law  slander,  and  if  the 
words  charged  do  not  amount  to  slander  they  cannot  be  helped 
by  the  innuendo. 

In  the  case  of  Bourland  vs.  Edison,  8  Grat.,  27,  decided  July, 
1851,  it  was  held :  In  an  action  of  slander,  under  the  plea  of  not 
guilty  the  defendant  may,  in  mitigation  of  damages,  prove  any 
facts  as  to  the  conduct  of  the  plaintiff  in  relation  to  the  transac- 
tion which  was  the  occasion  of  the  slanderous  language  com- 


Citations  to  the  Code  of  Virginia.  555 

plained  of  which  tend  to  excuse  him  for  uttering  the  words, 
provided  the  facts  do  not  prove  or  tend  to  prove  the  truth  of 
the  charge  complained  of,  but,  in  fact,  relieve  the  plaintiff  from 
the  imputation  involved  in  it. 

In  the  case  of  Ilogan  vs.  Walworth,  16  Grat.,  80,  decided 
August  30,  1860,  it  was  held :  In  an  action  of  slander,  if  the 
plaintiff  proceeds  under  the  statute  he  must  in  his  declaration 
aver  that  the  words,  from  their  usual  construction  and  common 
acceptation,  are  construed  as  insults,  and  tend  to  violence  and 
breach  of  the  peace,  or  else  employ  some  other  equivalent  or 
averment  to  denote  that  the  words  are  actionable  under  the 
statute. 

When  the  declaration  does  not  show  by  the  proper  averments 
that  the  action  is  under  the  statute,  it  may  be  demurred  to  as 
defective,  unless  it  sets  out  properly,  and  in  substantial  com- 
pliance with  the  rules  of  pleading,  such  a  charge  as  constitutes 
defamation  at  the  common  law. 

The  common  law  and  statutory  causes  of  action  cannot  be 
blended  in  one  count. 

In  the  case  of  Dlllard  vs.  Collins,  25  Grat.,  343,  decided  Sep- 
tember, 1874,  it  was  held :  In  an  action  of  slander,  a  plea  that 
since  the  commencement  of  the  action  the  plaintiff  has  been 
adjudicated  a  bankrupt  is  not  a  good  plea. 

In  every  instance  of  slander,  whether  verbal  or  written,  malice 
is  an  essential  ingredient  and  must  be  averred.  But  when 
averred,  and  the  language,  verbal  or  written,  is  proved,  the  law 
will  infer  malice  until  the  proof,  in  the  event  of  denial,  be  over- 
thrown or  the  language  itself  satisfactorily  explained.  Confi- 
dential or  privileged  communications  are  an  exception  to  this 
rule ;  and  in  such  a  case  the  burden  is  on  the  plaintiff  to  prove 
malice. 

Confidential  or  privileged  communications  are  of  four  classes : 
First,  Where  the  author  or  publisher  of  the  alleged  slander 
acted  in  the  hona  fide  discharge  of  a  public  or  private  duty, 
legal  or  moral,  or  in  the  prosecution  of  his  own  rights  or 
interest.  Second,  Anything  said  or  written  by  a  master  in 
giving  the  character  of  a  servant  .who  has  been  in  his  em- 
ployment. Third,  Words  used  in  the  course  of  a  legal  or 
judicial  proceeding,  however  hard  they  may  bear  upon 
the  party  of  whom  they  are  used.  Fourth,  Publications 
duly  made  in  the  ordinary  mode  of  parKamentary  proceed- 
ings. 

These  excepted  instances  so  far  change  the  ordinary  rule  with 
respect  to  slanderous  or  libelous  matter  as  to  remove  the  regu- 
lar and  usual  presumption  of  malice,  and  to  make  it  incumbent 
on  the  party  complaining  to  show  malice,  either  by  the  con- 
struction of  the  spoken  or  written  matter,  or  by  facts  and  circum- 


556  Citations  to  the  Code  of  Virginia. 

stances  coiiDected  with  that  matter,  or  in  the  situation  of  the 
parties  adequate  to  authorize  the  conchision. 

K.  G.  and  J.  rented  land  of  D.  They  were  strangers  in  the 
neighborhood.  On  several  occasions  D.  told  R.  G.  and  J.  that 
C.  and  all  his  sons  were  horse-thieves,  and  made  their  living  by 
that  means,  and  that  they  frequently  harbored  that  kind  of 
men.  There  is  nothing  in  the  relation  of  landlord  and  tenants 
between  D.  and  R.  G.  and  J.  which  raises  any  presumption  in 
favor  of  D.  that  the  words  were  spoken  without  malice,  or  brings 
them  within  the  class  of  privileged  communications. 

On  a  trial  in  an  action  for  slander  by  C.  against  D.,  the  slan- 
derous words  having  been  proved,  D.  will  not  be  allowed  to 
prove  by  his  own  testimony  what  were  his  feelings  and  motives 
in  making  the  charge,  whether  with  any  ill-will  against  C,  or 
only  for  the  protection  of  his  own  interests. 

A  deposition  is  taken  to  be  read  on  a  trial  at  law,  and  the 
witness  is  asked  if  he  is  acquainted  with  the  general  character 
of  C,  the  plaintiff,  for  honesty;  if  so,  state  what  it  was  and  is. 
To  which  he  answered,  as  far  as  he  could  see  he  did  not  see 
anything  against  the  man ;  he  never  heard  anything  against  him 
by  any  other  man  except  D.,  the  defendant.  To  this  answer 
the  defendant  excepted  generally.  On  the  cross-examination  it 
appears  that  witness  did  know  enough  of  C.'s  general  character 
to  authorize  him  to  speak  of  it.  The  exception  of  the  plaintiff 
should  have  stated  the  grounds  of  the  objection  to  the  answer. 
And  it  appearing  from  the  whole  deposition  that  the  witness 
was  competent  to  speak  as  to  the  character  of  C,  the  answer 
will  not  be  stricken  out. 

In  an  action  for  slander  the  defendant  cannot  inquire  into  the 
social  intercourse  of  the  plaintiff  with  his  neighbors.  And  where 
the  slander  charged  is  for  horse-stealing,  the  defendant  cannot 
introduce  evidence  of  rumors  as  to  the  plaintiff  or  his  sons 
having  stolen  a  hog. 

In  the  case  of  Ilansboro  and  Wife  vs.  Stinnett,  25  Grat.,  495, 
decided  September,  1874,  it  was  held :  In  an  action  for  slander 
at  common  law,  the  words  charged  are,  "D.  killed  my  beef." 
There  being  no  colloquium,  the  words  not  necessarily  importing 
a  felony,  they  cannot  be  extended  in  their  meeting  by  the  innu- 
endo. In  such  case,  the  words  themselves  not  being  actionable 
at  law,  unless  the  averment  of  extrinsic  facts  and  the  colloquium 
concerning  them  show  that  the  defendant,  in  speaking  the  words 
laid,  imputed  the  crime  felony,  they  are  not  actionable. 

When  the  words  la,id  in  the  declaration  have  been  proved,  and 
not  before,  proof  of  the  speaking  of  like  words,  or  those  laid 
either  before  or  after  they  are  spoken,  is  admissible  to  affect  the 
measure  of  damages. 

In  the  case  of  Chajfin  vs.  Lynch,  83  Va,,  106,  decided  April, 


Citations  to  the  Code  of  Yieginia.  557 

1887,  it  was  held :  This  act  applies  to  words  written  as  well  as 
words  spoken. 

A  publication  containing  insulting  words  may  be  declared  on 
under  the  statute,  though  it  be  libelous  at  common  law.  Declara- 
tion showing  by  proper  averment  that  the  words  are  within  the 
statute  is  sufficient,^  The  two  causes  of  action  cannot  be  united 
in  one  count.  In  either  case  malice  must  be  alleged.  Mere 
publication  \^  prima  facie  evidence  of  malice,  but  the  occasion 
may  rebut  the  presentation. 

One  insult  cannot  be  set  off  against  another,  yet  if  a  man  be 
attacked  by  another  in  a  newspaper  he  may  reply.  If  his  re- 
ply is  not  unnecessarily  defamatory  of  his  assailant,  and  is  hon- 
estly made  in  self-defence,  it  will  be  privileged. 

In  a  trial  of  action  for  defamation,  it  is  error  to  give  instruc- 
tions withdrawing  from  the  jury  the  question  whether  the  pub- 
lication declared  on  falls  within  the  protection  extended  to  privi- 
leged communications,  and  telling  them  to  consider  the  evidence 
tending  to  show  that  defendant  made  the  publication  without 
malice  and  bona  fide  in  self  protection,  only  in  mitigation  of 
damages.  On  the  contrary,  if  the  jury  from  the  evidence  be- 
lieved that,  though  the  language  used  was  untrue,  yet  the  de- 
fendant believed  it  trvie,  and  used  it  honestly,  and  without  mal- 
ice, in  self  defence  and  reasonable  protection  of  his  own  interest, 
it  would  have  been  their  duty  to  find  for  the  defendant,  and 
they  should  have  been  instructed  to  that  effect. 

This  is  the  case  referred  to  from  11  Va.  Law  Journal,  598. 

In  the  case  of  Rollaiid  vs.  Batchelde)\  84  Va.,  664,  decided 
March  29, 1888,  it  was  held :  Words  that,  according  to  their  usual 
and  common  acceptation,  are  construed  as  insults,  and  tend  to 
violence  and  breach  of  the  peace,  are  actionable,  whether  writ- 
ten or  spoken,  and,  it  would  seem,  whether  pubHshed  or  not. 
If  publication  be  necessary,  the  writing  and  sending  of  such 
words  to  the  person  libeled  is  sufficient. 

Letters  sent  per  servant  to  neighbor's  wife,  artfully  asserting 
that  she  had  invited  writer  to  meet  her,  and  proposing  private 
interview  at  a  time  and  place  specified,  are  within  the  meaning  of 
the  statute  and  actionable. 

At  a  trial  of  action,  no  "  demurrer  shall  preclude  a  jury  from 
passing  on  the  alleged  insulting  words,"  and  it  is  therefore  im- 
proper for  the  trial  court  to  compel  plaintiff  to  join  in  defend- 
ant's demurrer  to  evidence. 

In  the  case  of  Chajjin  vs.  Lynch,  84  Va.,  884,  decided  May 
10,  1888,  it  was  held :  Section  3575  (allowing  justification  in 
action  for  defamation  by  proving  truth)  and  the  rule  as  to  privi- 
leged communications  apply  as  well  to  this  section  as  to  com- 
mon law  actions  of  libel  and  slander. 


658  Citations  to  the  Code  of  Virginia. 

Section  2898. 

•In  the  case  of  Jones  vs.  Murdaugh,  2  Leigh,  447,  decided 
December,  1830,  it  was  held:  In  an  action  upon  the  statute  for 
wrongful  distress  for  rent  when  no  rent  is  in  arrear,  the  declara- 
tion must  set  forth  the  relation  of  landlord  and  tenant  existing 
between  the  plaintiff  and  defendant,  and  if  it^does  not  the  decla- 
ration is  bad  on  general  demurrer. 

In  the  case  of  Olinger  vs.  McChemey,  7  Leigh,  660,  decided 
July,  1836,  it  was  held :  Where  a  distress  is  made  for  rent  pre- 
tended to  be  due,  when  in  truth  there  is  none  due,  and  the 
goods  distrained  are  not  sold,  the  remedy  is  by  action  at  com- 
mon law,  and  trespass  may  be  maintained,  but  the  party  suing 
is  not  obliged  to  bring  trespass ;  he  may  waive  the  trespass  and 
bring  case. 

The  circumstance  that  the  party  distrained  upon  sued  out  a 
writ  of  replevin,  which  was  never  prosecuted,  will  not  prevent 
him  from  maintaining  case  for  the  wrongful  distress.  Case  will 
lie  for  suing  out  an  attachment  for  rent  maliciously  and  without 
probable  cause.  When  an  action  of  tort  is  founded  on  a  con- 
tract, a  variance  from  the  contract  alleged  will  be  as  fatal  as  in 
an  action  on  the  contract  itself.  In  case  for  a  wrongful  dis- 
tress, if  the  plaintiff  allege  that  he  held  under  a  lease  for 
five  months,  for  twenty  dollars  payable  in  repairs  and  labor, 
and  at  the  trial  it  appear  that  the  lease  was  for  twelve 
months,  for  a  rent  of  sixty-five  dollars,  the  variance  will  be 
fatal. 

Section  2899. 

In  the  case  of  Vaiden  vs.  Bell,  3  Rand.,  448,  decided  Octo- 
ber, 1825,  it  was  held :  A  writ  of  replevin  lay  at  common  law 
for  all  goods  unlawfully  taken,  and  this  was  the  law  of  Virginia 
until  the  act  of  1823,  which  abolished  the  writ  in  all  cases,  ex- 
cept those  of  distress  for  rent.  That  act  is  not  retrospective, 
and  does  not  affect  cases  where  the  action  was  brought  and  the 
judgment  rendered  before  its  passage. 

Section  2900. 
In  the  case  of  Westet^i  Union  Telegraph  Company  vs.  Rey- 
nolds Bros.,  11  Va.,  173,  decided  February  15, 1883,  it  was  held, 
p.  178 :  Where  such  company  has  received  a  message  for  trans- 
mission and  the  usual  charges  according  to  their  regulations,  it 
is  bound  to  transmit  the  message  faithfully  and  promptly, 
whether  it  be  in  cipher  or  intelligible ;  and  should  the  company 
negligently  fail  to  transmit  such  a  message  altogether,  or  to 
transmit  it  faithfully  and  promptly,  it  will  be  liable  to  an  action 
for  damages  by  the  party  aggrieved,  and  the  measure  of  damages 
in  such  case  is  such  loss  as  the  parties  aggrieved  have  sustained 
by  reason  of  the  wrongful  act  of  the  company  in  violation  of 


Citations  to  the  Code  of  Virginia.  559 

the  duties  imposed  on  it  by  law.  A  more  precise  statement  of 
the  rule  'is,  "  the  company  is  liable  to  all  the  direct  damages 
which  both  parties  would  have  contemplated  as  flowing  from 
the  breach  of  the  contract  or  violation  of  the  duty,  if  at  the 
time  they  had  bestowed  proper  attention  to  the  subject,  and 
had  been  fully  informed  of  all  the  facts." 

Telegraph  company  received  a  cipher  message  for  transmis- 
sion, and  the  usual  charges  according  to  its  regulations,  and 
failed  altogether  to  transmit  it,  whereby  the  sender  lost  a  large 
sum  of  money,  and  brought  his  action  for  damages  against  the 
company.  At  the  trial  the  defendant  asked  the  court  to  in- 
struct the  jury  that  in  order  to  make  the  defendant  liable  for 
more  than  nominal  damages  they  must  believe  from  the  evi- 
dence that  the  defendant  was  substantially  informed  of  the 
meaning  of  the  message  and  of  the  approximate  extent  of  the 
plaintiff's  liability  to  loss  in  case  of  failure  to  transmit  the  mes- 
sage promptly  and  correctly.     Court  below  refused. 

In  the  case  of  Norfolk  &  Western  Railroad  Company  vs.  Irvine^ 
84  Ya.,  553,  decided  February  16,  1888,  it  was  held:  Plaintiff 
injured  by  railroad  company's  refusal  to  carry  his  baggage  is 
not  limited  to  a  recovery  of  a  penalty  prescribed  by  Section 
1201,  but  under  this  section  may  recover  the  amount  of  the 
■actual  damages. 

In  the  case  of  R.  &  D.  R.  B.  Co.  vs.  JSfoel  et  als.,  86  Va.,  19, 
decided  April  11,  1889,  it  was  held :  Obstruction  of  streets  by  a 
railroad  company,  unless  the  train  is  standing  to  load  or  unload 
passengers,  and  unless  a  passway  is  left  open,  is  unlawful,  and 
the  company  is  liable  to  fine  and  for  such  damages  as  may  be 
caused  thereby  to  any  person;  but  these  damages  must  be 
proved,  not  inferred. 

Section  2901. 

The  references  to  2  H.  &  M.,  423,  6  Munf.,  27 ;  2  Band.,  440, 
and  4  Grat.,  151,  are  all  to  cases  determining  when  an  action  at 
trespass  vi  et  annis  must  be  brought,  and  are  all  obsolete  now. 

In  the  case  of  Parsons  vs.  Harper,  16  Grat.,  64,  decided  Au- 
gust 28,  1860,  it  was  held:  Under  this  statute  counts  in  trespass 
may  be  joined  to  counts  in  case  in  an  action  on  the  case. 

In  the  case  of  ^yGmack  vs.  Circle,  29  Grat.,  192,  decided  Oc- 
tober 4,  1877,  it  was  held,  p.  197:  In  an  action  of  trespass  on 
the  case,  counts  in  case  and  counts  in  trespass  vi  et  armis  may 
be  joined  in  the  declaration. 

In  the  case  of  Fecheimer  vs.  National  Exchange  Bank  of  Nor- 
folk, 31  Grat.,  651  and  656,  decided  March,  1879.  L.  &  S.  car- 
ried on  two  stores  in  Norfolk  on  premises  on  which  they  held 
leases.  On  the  8th  day  of  May,  1866,  they  conveyed  to  F.  all 
their  goods  in  their  stores,  all  debts  due  them,  and  the  lease- 
held  premises,  in  tnist  to  pay  certain   specified   debts,  with 


560  Citations  to  the  Code  of  Virginia. 

authority  to  take  possession,  sell  the  goods,  and  collect  the  debts. 
On  the  i5th  of  May,  "W.  sued  L.  &  S.  in  assumpsit  for  $913.30, 
and  on  the  same  day  sued  out  an  attachment  against  their 
effects,  and  this  attachment  was  levied  on  all  their  goods  and 
debts  at  the  two  stores,  which  were  taken  possession  of  by  the 
sergeant  of  the  city.  On  the  same  15th  of  May,  but  two  or 
three  hours  after,  the  attachment  of  W.  was  levied.  The  Na- 
tional Exchange  Bank  of  Norfolk  sued  oiit  an  attachment  against 
the  property  of  L.  &  S.,  claiming  a  debt  of  eleven  thousand  six 
hundred  and  sixty-five  dollars,  and  this  attachment  v,as  levied 
by  the  same  officer  upon  the  goods,  etc.,  in  his  hands  under  the 
other  attachment,  and  also  upon  the  lease-hold  of  the  two  houses. 
In  this  case  F.  interpleaded,  and  there  was  a  verdict  and  a  judg- 
ment in  his  favor.  And  afterwards  the  suit  of  W.  was  dismissed. 
F.  then  sued  the  bank  in  an  action  of  trespass  on  the  case  for 
the  damages  he  had  sustained  by  the  levy  of  their  attachment. 
Held :  Though  at  common  law  action  on  the  case  was  the  pro- 
per remedy  so  far  as  the  goods,  etc.,  embraced  in  the  first  at- 
tachment were  involved,  and  trespass  vi  et  arrnis  was  the  rem- 
edy as  to  the  lease-holds  which  were  not  levied  on  by  the  first, 
yet,  as  under  the  Virginia  statute,  case  may  be  brought  wher- 
ever the  action  of  trespass  vi  et  armis  could  be  brought,  the 
action  on  the  case  was  properly  brought  to  recover  the  damages 
sustained  as  to  all  the  property  attached. 

In  the  case  of  Dangerfield  vs.  Thompson,  33  Grat.,  136,  de- 
cided April,  1880.  In  an  action  of  trespass  on  the  case,  the 
declaration  charged  the  defendant  with  an  assault  in  various 
forms,  one  of  which  was  by  a  wounding  from  a  pistol  shot,  so  as 
to  cause  the  amputation  of  the  leg  of  the  plaintiff,  and  also  set 
out  an  ordinance  of  the  city  in  which  the  wound  was  inflicted, 
prohibiting  the  discharge  of  firearms  therein ;  also  alleging  the 
continued  sickness,  disorder,  and  suffering  in  consequence  of 
said  wound,  the  expense,  medical  attention,  and  other  costs  con- 
sequent on  said  wound,  which,  plaintiff'  claimed,  amounted  to 
a  large  sum  and  for  which  he  claimed  damages  amounting  to 
ten  thousand  dollars.  On  demurrer,  held :  The  declaration  al- 
leges a  case  of  trespass  at  common  law,  and  under  our  statute 
trespass  on  the  case  will  lie  wherever  trespass  will,  and  is  suf- 
ficient. 

In  the  case  of  New  York^  PhiladelpJda  &  Norfolk  Railroad 
Company  vs.  Kellam's  Administrator,  83  Va.,  851,  decided  No- 
vember, 1887,  it  was  held:  Abolishes  distinction  between  these 
two  actions.  Writ  in  former  action ;  declaration  in  latter  ;  de- 
murrer for  the  variance  properly  overruled. 

Section  2902. 
In    the   case   of   Baltimore  c&   Ohio  Railroad  Company  vs. 
Wightmans  Executor,   29   Grat.,  431,  decided   November  29, 


I 


Citations  to  the  Code  of  Virginia.  561 

1877,  it  was  held:  In  an  action  under  this  section  it  is  not 
necessary  to  aver  in  the  declaration  for  whose  benefit  the  suit 
is  prosecuted. 

In  the  case  of  Matthews  vs.  W&mer^s  Administrator^  29  Grat., 
570,  decided  December  19,  1877,  it  was  held:  In  an  action 
under  this  section  it  is  not  necessary  to  aver  in  the  declaration 
for  whose  benefit  the  action  is  brought. 

In  the  case  of  B.  cfc  0.  R.  R.  Co.  vs.  Shermaris  Administrator ^ 
30  Grat.,  602,  decided  September,  1878,  it  was  held :  In  an  ac- 
tion under  the  statute  by  the  administrator  of  a  party  killed 
upon  a  railroad  track  against  the  company,  the  plaintiff  may, 
upon  the  trial,  and  before  the  jury  has  rendered  a  verdict,  in- 
troduce evidence  to  prove  that  the  deceased  left  a  widow  and 
children,  and  the  number  and  ages  of  the  children. 

In  an  action  on  the  case  by  the  administrator  of  a  person 
killed  upon  a  railroad  track  against  the  company,  the  deceased 
not  being  an  employee  of  the  railroad  or  passenger,  but  walking 
on  it  for  his  own  convenience,  but  not  of  necessity,  it  was  held 
in  this  case  upon  the  evidence  that  there  was  little  ground  to 
charge  negligence  upon  the  company;  but  if  there  was  any 
negligence  on  the  part  of  the  company,  there  was  contributory 
negligence  on  the  part  of  the  deceased,  and  certainly  the  negli- 
gence of  the  company,  if  any,  was  not  so  gross  as,  notwithstand- 
ing the  contributory  negligence  of  the  deceased,  to  render  the 
company  responsible  for  the  damage  sustained  by  the  plaintiff 
for  the  killing  of  the  deceased. 

In  the  case  of  the  B.  &  O.  R.  R.  Co.  vs.  Whittington' s  Ad- 
ministrator, 30  Grat.,  805,  decided  September,  1878,  it  was  held: 
In  an  action  for  damages  occasioned  by  the  negligence  or  mis- 
conduct of  the  defendant,  it  is  not  necessary  for  the  plaintiff  to 
allege  in  his  declaration  or  to  prove  the  existence  of  due  care 
and  caution  on  his  part  to  entitle  him  to  recover.  If  the  de- 
fendant relies  upon  contributory  negligence  of  the  plaintiff  to 
defeat  the  action,  he  must  prove  it  unless  the  fact  is  disclosed 
by  the  evidence  of  the  plaintiff,  or  may  be  fairly  inferred  from 
all  the  circumstances. 

In  an  action  for  damages  against  a  railroad  company,  a  count 
in  the  declaration,  after  setting  out  that  the  defendant  was  work- 
ing a  railroad  in  the  county  with  engines  and  cars  for  carrying  pas- 
sengers and  freight,  alleged  that  on  a  day  named  "the  defendants 
conducted  themselves  so  carelessly,  negligently  and  unskilfully 
in  the  operation  of  their  said  business  as  to  inflict  upon  W. 
(plaintiff's  intestate)  severe  bodily  injuries,  by  reason  whereof 
he  did,  on  the  28tli  of  June,  die."  The  count  is  defective  in  not 
stating  where  the  deceased  was,  or  how  he  was  injured.  Where 
issue  has  been  joined  on  the  plea  of  general  issue,  the  court 
may  refuse  to  allow  the  defendant  to  file  special  pleas,  where 
36 


562  Citations  to  the  Code  of  Virginia. 

the  facts  stated  in  the  pleas  may  all  be  given  in  evidence  under 
the  general  issue. 

An  employee  of  a  railroad  company,  who  is  engaged  in 
mending  the  track  of  the  road,  whilst  he  may  get  further  off, 
stands  near  enough  to  the  railroad  track  to  be  struck  by  a  train, 
if  perchance  there  should  be  an  increase  of  speed  or  a  change 
of  cars,  is  guilty  of  the  grossest  imprudence  and  negligence. 
No  man  is  justified  in  placing  himself  near  a  passing  train  upon 
any  such  idea  or  presumption,  and  for  an  injury  sustained  by 
so  doing  he  or  his  representative  cannot  recover.  In  this  case, 
upon  the  facts  certified,  the  deceased  was  guilty  of  contributory 
negligence,  and  his  administrator  is  not  entitled  to  recover 
damages  from  the  railroad  company  for  the  injuries  sustained 
by  the  deceased. 

If  the  injury  sustained  by  the  deceased  was  the  result  of  a 
change  of  the  usual  train,  from  an  accommodation  train  of  mode- 
rate rate  of  travel  to  what  is  known  as  a  lightning  express  train, 
of  a  rate  of  travel  from  twonty-five  to  thirty-five  miles  per  hour, 
and  of  a  change  of  schedule  6i  the  time  of  runniog  the  train, 
passing  the  point  at  which  the  deceased  was  killed,  and  said 
changes  were  by  the  chief  authority  of  the  railroad  company, 
and  the  death  of  the  deceased  was  without  fault  on  his  part,  and 
the  company  had  not  given  notice  of  said  changes  to  the  em- 
ployees, of  whom  deceased  was  one,  so  as  to  enable  them  to 
avoid  the  danger,  it  was  the  duty  of  the  said  company  to  give 
such  notice,  and  their  failure  to  do  so  was  negligence  of  the 
company,  for  which  it  is  responsible  in  damages. 

In  the  case  of  Richmond  cfe  Danville  Railroad  Company  vs. 
Anderson's  Administrators,  31  Grat.,  812,  decided  May  1,  1879, 
it  was  held :  The  plaintiff  in  an  action  for  negligence  cannot 
succeed  if  it  is  found  by  the  jury  that  he  has  been  guilty  of  any 
negligence  or  want  of  ordinary  care  which  contributed  to  cause 
the  accident.  But  though  the  plaintiff  may  have  been  guilty  of 
negligence,  and  although  that  negligence  may,  in  fact,  have 
contributed  to  the  accident,  yet  if  the  defendant  could  in  the 
result,  by  the  exercise  of  ordinary  care  and  diligence,  have 
avoided  the  mischief  which  happened,  the  plaintiff's  negligence 
will  not  excuse  him. 

In  the  case  of  B.  (&  O.  R.  R.  Co.  vs.  Nm'velVs  Adrninistrator, 
32  Grat.,  394,  decided  November,  1879,  it  was  held:  When  in- 
jury or  damage  happens  to  a  passenger  by  the  breaking  down 
or  overturning  of  a  railroad  train,  or  the  breaking  down  of  a 
bridge,  wheel,  axle,  or  by  any  other  accident  occurring  on  the 
road,  the  presumption  j^r-ma /acz'e  is,  that  it  occurred  by  the 
negligence  of  the  railroad  company,  and  the  burden  of  proof  is 
on  the  railroad  company  to  prove  that  there  has  been  no  negli- 
gence whatever,  and  that  the  damage  has  been  occasioned  by 


Citations  to  the  Code  of  Virginia.  563 

inevitable  casualty  or  by  some  cause  which  human  care  and 
foresight  could  not  prevent. 

The  law,  in  tenderness  to  human  life  and  limbs,  holds  railroad 
companies  liable  for  the  slightest  negligence,  and  compels  them 
to  repel  by  satisfactory  proof  every  imputation  of  such  negli- 
gence ;  and  therefore,  where  the  death  of  a  passenger  on  said 
railroad  is  caused  by  slightest  neglect,  against  which  human  pru- 
dence and  foresight  could  have  guarded,  the  company  is  liable 
in  damages  for  such  death. 

Railroad  companies  are  held  by  law  to  the  utmost  care,  not 
only  in  the  management  of  their  trains  and  cars,  but  also  in  the 
structure,  repair  and  care  of  the  bridges  and  all  other  arrange- 
ments necessary  to  the  safety  of  passengers. 

Charles  L.  Norvell's  administrator  brought  suit  against  the  B. 
&  O.  R.  R.  Co.,  lessees  of  the  Washington  City,  Virginia  Mid- 
land &  Great  Southern  Railroad,  running  from  the  town  of 
Strasburg,  in  Shenandoah  county,  to  the  town  of  Harrisburg,  in 
Rockingham  county,  to  recover  damages  for  the  death  of  said 
Norvell,  which  occurred  by  what  is  known  as  "Narrow  Passage 
Bridge  disaster,"  in  said  county  of  Shenandoah,  Virginia.  Nor- 
VfU  was  an  unmarried  young  man,  whose  father  was  dead  and 
who  lived  with  and  cared  for  his  mother.  On  the  trial,  on  the 
motion  of  the  plaintiff,  the  circuit  court  instructed  the  jury  as 
follows : 

In  ascertaining  such  damages  the  jury  should  find  the  sum 
with  reierencejirst  to  the  pecuniary  loss  of  Phoebe  Ann  Norvell, 
the  mother  of  said  Charles  L.  Norvell,  by  the  death  of  said 
Charles  L.  Norvell,  fixing  the  same  at  such  sum  as  would  be 
equal  to  the  probable  earnings  of  the  said  Charles  L.  Norvell, 
taking  into  consideration  the  age,  business  capacity,  experience, 
habits,  energy,  and  perseverance  of  the  deceased  during  what 
probably  would  have  been  his  lifetime,  and  the  lifetime  of  said 
P.  A.  Norvell.  if  he  had  not  been  killed.  Second,  In  ascertain- 
ing the  probability  of  life,  the  jury  have  the  right  to  determine 
the  same  with  reference  to  recognized  scientific  tables  relating 
to  the  expectation  of  human  life.  Third,  By  adding  thereto 
compensation  for  the  loss  of  his  care,  attention  and  society  to 
his  mother.  Fourth,  By  adding  such  sum  as  they  may  deem 
fair  and  just,  by  way  of  solace  and  comfort  to  his  said  mother, 
for  the  sorrow,  suffering,  and  mental  anguish  occasioned  by 
his  death.  Held :  There  was  no  error  in  either  of  the  instruc- 
tions. 

In  an  action  under  this  section,  it  is  not  necessary  to  aver  in 
the  declaration  for  whose  benefit  the  suit  is  prosecuted. 

In  the  case  of  liichinond  da  Danville  Railroad  Company  vs. 
Moore's  Ad7ninistrators,  78  Va.,  93,  decided  December  6,  1883. 
M.  was  on  December  24,  1879,  conductor  of  a  freight  train  on 


L 


564  Citations  to  the  Code  op  Virginia. 

RicLmond  &  Danville  Railroad,  running  from  Greensboro  to- 
Richmond.  A  car  was  taken  into  train  dnring  niglit  at  Burke- 
ville,  tlie  handle  of  the  ladder  whereof  had  been  broken  off  long 
enough  for  the  fracture  to  appear  weather-worn.  Next  morning 
at  Powhatan  Station,  M.,  attempting  to  descend  this  ladder,  face 
towards  it,  caught  at  and  would  have  caught  the  handle  had  it 
been  in  its  place,  but  fell  and  was  killed ;  conflict  in  evidence  as 
to  whether  M.  was  drunk  and  negligent  or  otherwise.  In  suit 
by  personal  representative  of  M.  for  damages,  defendant  de- 
murred to  the  evidence.  On  error.  Held  :  Defendant  was  guilty 
of  negligence  in  permitting  the  car  ladder  to  remain  out  of 
order,  which  negligence  caused  M.'s  death  and  renders  defend- 
ant liable  for  damages. 

Under  the  rule  governing  demurrers  to  evidence,  M.  con- 
tributed in  no  way  to  the  accident  by  his  own  misconduct. 

In  the  case  of  Clark's  Administrators  vs.  B.  <&  D.  R.  R.  Co., 
78  Va.,  709,  decided  March  13,  1884,  it  was  held:  Where  de- 
fendant's negligence  was  proximate  cause  of  injury  to  plaintiff, 
who  did  not,  by  want  of  common  care  of  himself,  contribute  to 
such  injury,  or  where  defendant,  by  exercise  of  care,  could  have 
prevented  the  consequence  of  plaintiff's  carelessness,  plaintiff 
may  recover  compensation. 

C.,  a  minor,  but  with  his  father's  consent  employed  as  a 
brakeman  on  a  freight  train,  while  doing  duty  on  top  of  car  by 
moonhght  was  killed  by  a  colliding  highway  bridge,  not  high 
enough  for  a  man  erect  on  car  top  to  pass  under.  When  em- 
ployed he  was  warned  by  company's  agent  to  look  out  for  high- 
way bridges,  and  his  co-brakemen  were  told  to  show  him  the 
dangerous  ones.  Under  this  bridge  in  daylight  C.  had  thrico 
passed.  That  night,  leaving  the  station  next  to  the  bridge,  C. 
was  warned  to  look  out  for  the  bridge.  On  nearing  the  bridge, 
co-brakeman  seeing  C.  erect  on  car-top  told  him  to  stoop,  but 
C.  did  not  stoop.  Action  by  C.'s  administrator;  company  de- 
muiTcd  to  the  evidence.  Held :  Defendant  was  entitled  to  de- 
mur and  plaintiff  was  compelled  to  join. 

Though  defendant  may  have  been  culpable  for  lowness  of 
bridge,  yet  C.'s  carelessness  contributed  to  injury,  and  defendant 
is  not  liable. 

The  risk  of  collision  with  such  bridges  was  incident  to  the 
employment.  C.  had  opportunity  to  know  their  dangerous  char- 
acter, which  must  have  been  contemplated  when  he  accepted 
employment. 

In  the  case  of  Moon's  Administrators  vs.  R.  &  A.  R.  R.  Co., 
78  Ya.,  745,  decided  April  24,  1884,  it  was  held :  The  fellow- 
servant  or  co-employee  for  whose  negligence  the  company  is  not 
liable  is  one  employed  in  the  same  shop  or  place  with,  and  hav- 
ing no  authority  over  the  one  injured,  and  who  is  no  more 


I 


Citations  to  the  Code  of  Virginia.  565 

■charged  with  the  diseretionarj  exercise  of  powers  and  duties 
resting  on  the  company  than  is  the  one  injured. 

But  when  the  company  delegates  to  an  agent  duties  made  in- 
-cumbent  on  it  by  the  law,  his  acts  and  negligences  are  those  of 
the  company,  and  such  agent  is  not  a  fellow- servant  with  those 
under  him,  nor  with  those  in  a  different  department  of  its  ser- 
vice, and  it  is  liable  for  an  injury  done  by  such  agent's  acts  or 
negligencies  to  an  employee  of  either  of  the  two  classes  afore- 
said. 

The  case  of  The  Harrishurg,  iii  rem,  119  U.  S.  S.  C,  199,  de- 
cided November  15,  1886,  it  was  held :  If  a  suit  in  rem  can  be 
maintained  in  admiralty  against  an  offending  vessel  for  the  re- 
covery of  damages  for  the  death  of  a  human  being  on  the  high 
seas,  or  in  waters  navigable  from  the  ocean,  which  is  caused  by 
negligence,  when  an  action  at  law  is  given  therefor  by  statute  in 
the  State  when  the  wrong  was  done,  or  where  the  vessel  be- 
longed (which  is  not  decided),  it  must  be  commenced  within  the 
period  prescribed  by  the  State  statute  of  limitation  there.  The 
time  within  which  the  suit  should  be  commenced  operating  as 
a  limitation  of  the  liability  created  by  statute,  and  not  of  the 
remedy  only. 

In  the  absence  of  an  act  of  congress,  or  a  statute  of  a  State 
giving  a  right  of  action  therefore,  a  suit  in  admiralty  cannot  be 
maintained  the  in  courts  of  the  United  States  to  recover  dama- 
ges for  the  death  of  a  human  being  on  the  high  seas  or  waters 
navigable  from  the  sea,  which  is  caused  by  negligence. 

In  the  case  of  Sheeler's  Administrator  vs.  C.  <&  0.  H.  Ji.  Co., 
81  Va.,  188,  decided  December  3,  1885.  In  order  to  maintain 
an  action  for  an  injury,  it  must  be  proved  that  the  injury  was 
caused  by  the  negligence  of  the  defendant  or  his  agents,  and 
it  must  not  appear  from  the  evidence  that  want  of  ordinary 
care  and  prudence  on  the  part  of  the  plaintiff  directly  con- 
tributed to  the  injury.  Where  negligence  is  the  gravaman  of 
the  action,  the  law  does  not  impute  it,  but  the  burden  of  prov- 
ing it  rests  on  him  who  alleges  it. 

On  defendant's  railroad  is  a  bridge  with  sides  five  feet  high. 
The  top  is  one  foot  higher  than  the  cab  floor,  and  thirteen  and 
one-half  inches  of  passing  engines,  making  it  unsafe  for  one  to  be 
on  outside  of  engine  passing  bridge.  The  bridge  is  more  pro- 
perly built  with  respect  to  safety  on  passing  engines  than  other 
bridges  on  that  and  other  roads.  S.  well  knew  this  bridge, 
having  passed  over  it  on  engiaes  daily  for  months.  Whilst 
the  engine  whereof  S.  was,  on  November  27,  1883,  fireman,  was 
running  eighteen  miles  an  hour,  he,  without  orders  and  in  vio- 
lation of  the  rules,  opened  the  ashpan,  by  means  whereof  fire 
fell  out  and  set  blazing  some  greased  woolen  ravelings  on  the 
box  of  a  driving-wheel  of  the  engine.     The  fire  could  not  be 


566  Citations  to  the  Code  of  Vikginia. 

extinguished  without  stopping  the  train,  and  it  was  sufficient  to- 
stop  it  at  the  next  stopping  place.  But  without  orders  and  un- 
necessarily, S.  got  down  on  the  side  of  the  engine  and  tender, 
with  his  right  foot  on  step  of  engine  and  left  on  step  of  tender, 
clasping  with  right  hand  hand-holder  on  engine,  and  holding 
in  his  left  hand  a  small  hose  attached  to  spigot  on  tender, 
swung  his  body  out  and  forward  in  a  stooping  posture,  and 
with  left  arm  resting  under  side  of  engine,  was  attempting  to 
extinguish  the  blaze,  when  he  was  struck  by  the  upright  side  of 
the  bridge  and  was  killed.  Held :  S.,  and  not  the  defendant 
company,  was  guilty  of  negligence,  but  for  which  injury  would 
not  have  occurred,  and  hence  is  not  entitled  to  recover. 

The  case  of  Frarlei/s  Administrators  vs.  Richmond  and  Dan- 
ville Railroad  Company,  81  Ya.,  783,  confirms  the  case  of  Rich- 
mond and  Danville  Railroad  Covipany  vs.  Anderson,  31  Grat., 
812,  cited  supra. 

The  case  of  Roberts  vs.  The  A.  <&  F.  R.  R.  Co.  has  since  been 
reported,  83  Va.,  312,  and  is  not  relevant  to  this  section. 

Section  2903. 

The  reference  to  29  Grat.,  570,  is  to  the  case  quoted  supra, 
Section  2902. 

Section  2904. 

In  the  case  of  PowelVs  Administrator  vs.  Powell,  84  Va.,  415, 
decided  January  26,  1888,  it  was  held :  The  money  received  by 
administrator  upon  a  compromise  of  an  action  for  damages  for 
the  killing  of  his  intestate,  must,  after  paying  the  costs  and  at- 
torney's fees,  be  distributed  according  to  the  statute  of  distribu- 
tions. 

CHAPTER  CXXXVIII. 

In  the  case  of  Burnley  vs.  Lamihert,  1  Washington,  308,  de- 
cided at  the  fall  term  1794,  it  was  held :  If  the  defendant  has 
had  possession  of  the  property  at  a  time  anterior  to  the  issuing 
of  the  writ  it  is  sufficient,  and  he  can  only  avoid  the  burden  by 
showing  that  he  has  been  evicted  by  proper  process  of  law. 

In  the  case  of  nigger's  Administrators  vs.  Alderson,  1  H.  & 
M.,  54,  decided  October  17, 1806,  it  was  held  :  In  detinue,  where 
a  demurrer  to  evidence  states  that  the  defendant  in  support  of 
his  right  offered  a  bill  of  sale,  and  no  other  evidence  of  the  de- 
fendant's possession  is  mentioned,  that  is  sufficient  to  prove  said 
possession. 

In  the  case  of  Newby's  Administrators  vs.  Blakely,  3  H.  &  M., 
57,  decided  October,  1809,  it  was  held:  A  plaintiff  in  detinue, 
who,  after  having  five  j^ears  peaceable  possession  of  a  slave,  ac- 
quired without  force  or  fraud,  loses  that  possession,  may  regain 
it  on  the  mere  ground  of  his  previous  possession,  on  the  same 


Citations  to  the  Code  of  Vieginia.  567 

principle  that  a  defendant  may  protect  himself,  on  that  length  of 
possession,  under  the  act  of  limitation. 

But  such  recovery  will  not  affect  the  rights  of  others  not  parties 
to  the  suit. 

In  the  case  of  Eppes  vs.  RoyaVs  Administrators,  2  Munf.,  479, 
decided  March  29,  1811,  it  was  held:  If  the  plaintiff  and  de- 
fendant claim  under  the  same  executory  bequest,  and  a  case 
agreed  be  submitted  to  the  court,  to  be  adjudged  according  to  the 
legal  construction  of  the  will,  without  saying  anything  about  the 
executors  assent  to  the  legacy,  the  court  will  assume  that  as  a 
fact  between  the  present  parties. 

An  executor  or  administrator,  holding  slaves  in  which  his  tes- 
tator or  intestate  had  only  an  estate  for  life,  terminable  upon  his 
dying  without  issue  living  at  the  time  of  his  death  (which  event 
actually  took  place),  may  be  charged,  in  detinue,  personally,  and 
not  as  an  executor  or  administrator. 

It  seems  that  if  a  declaration  in  detinue  demand  a  negro 
woman  by  name  and  her  three  children,  not  mentioning  their 
names,  and  a  case  be  agreed,  submitting  that  if  the  law  be  for 
the  plaintiff  upon  certain  other  points,  judgment  may  be  entered 
in  his  favor,  "for  the  slaves  in  the  declaration  mentioned,"  the 
court  may  insert  the  names  of  the  negro  children  in  the  judg- 
ment. 

In  the  case  of  Keiit  vs.  Armistead,  4  Munf.,  72,  decided 
March,  1813,  it  was  held :  A  declaration  in  detinue  for  a  slave  is 
•insufficient  to  support  the  action  if  it  omit  to  state  that  the  slave 
in  question  belonged  to  or  was  the  property  of  the  plaintiff,  and 
such  defect  is  not  cured  by  verdict. 

In  the  case  of  Austin's  Executor •■^%.  Jones,  1  Va.  (Gilmer),  341, 
decided  June,  1821,  it  was  held:  In  detinue,  the  jury  having 
found  for  the  plaintiff  the  slave  mentioned  in  the  declaration, 
etc.,  but  that  she  had  died  since  the  suit  was  brought,  the  court 
must  nevertheless  give  judgment  for  the  slave  or  her  value,  the 
death  not  being  put  in  issue  by  plea  pais  darrien  continuance. 

In  the  case  of  Lynch  vs.  Thomas,  3  Leigh,  682,  decided  May, 
1832,  it  was  held :  If  in  detinue  for  chattels  the  plaintiff  prove 
that  he  had  title  at  the  time  of  the  action  brought,  and  that  then 
the  defendant  had  possession,  defendant  to  defeat  the  action 
must  show  that  he  had  been  devested  of  the  property  by  due 
course  of  law. 

In  the  case  of  Allen's  Executors  vs.  Ilarlai^s  Administrator,  6 
Leigh,  42,  decided  February,  1835,  it  was  held :  Detinue  lies 
against  an  executor  as  such,  if  the  goods  demanded  have  come 
to  his  possession,  otherwise  not.  If  in  detinue  the  defendant 
dies  pending  the  action,  it  may  be  revived  by  sci.  fa.  against  the 
executor  under  the  statute,  if  the  goods  demanded  have  come 
to  the  executor's  possession,  otherwise  not,  therefore  it  must  be 


568  Citations  to  the  Code  of  Virginia. 

suggested  in  the  sci.  fa.  or  alleged  in  a  declaration  thereupon  that 
the  goods  came  to  the  executor's  possession  ;  for  if  the  executor's 
possession  be  nowise  alleged,  there  can  be  no  recovery  against 
him. 

Judgment  in  detinue  against  an  executor  as  such  should  be 
given  against  him  personally  for  the  goods  by  him  detained, 
or  the  alternative  value ;  but  for  all  damages  for  detention,  both 
in  his  testator's  time  and  his  own,  it  should  be  against  him  de 
bonis  testatoris. 

In  the  case  of  CatletCs  Executor  vs.  Russell,  6  Leigh,  344,  de- 
cided April,  1835,  it  was  held :  Detinue  for  a  chattel  lies  against 
an  executor  as  such,  if  the.  chattel  actually  came  to  the  execu- 
tor's possession,  otherwise  not;  and  detinue  brought  against  tes- 
tator, and  pending  at  his  death,  may  be  revived  by  sd.  fa.  against 
the  executor  if  the  chattel  demanded  actually  came  to  the  ex- 
ecutor's possession,  otherwise  not.  Therefore,  in  sd.  fa.  against 
an  executor  in  such  case,  it  must  be  either  suggested  in  the  sci. 
fa.  or  alleged  in  a  declaration  thereon,  that  the  chattel  came  to 
the  executor's  possession,  and  if  there  be  no  such  allegation,  no 
judgment  can  be  given  against  the  executor. 

It  seems  that  judgment  in  detinue  against  an  executor  as 
such,  should  be  for  the  goods  or  the  alternative  value  against 
the  executor  de  honis  propriis,  and  for  the  damages  for  deten- 
tion, both  in  the  testator's  and  executor's  time,  de  hojiis  testa- 
toris;  dissentiente  Brockenbrough  and  Cabell,  J.,  who  held  that 
the  judgment  should  be  against  the  executor  for  the  goods,  if  to 
be  had,  for  the  alternative  value,  the  damages  for  detention,  and 
the  costs,  all  to  be  levied  de  honis  testatoris. 

In  the  case  of  Boyle  vs.  Townes,  9  Leigh,  158,  decided  Jan- 
uary, 1838,  it  was  held :  A  person  appointed  curator  and  re- 
ceiver of  chattels  by  a  court  of  chancery  does  not,  by  virtue  of 
that  appointment,  acquire  a  right  of  property,  but  if  he  bring 
detinue  for  the  chattels,  describing  himself  as  curator  and  re- 
ceiver, and  counting  as  upon  his  own  property,  and  on  a  bail- 
ment thereof  to  the  defendant,  the  count  is  good,  the  description 
of  curator,  etc.,  being  surplusage.  A  bailee  of  chattels  may 
maintain  detinue  for  them  upon  his  right  of  possession  as  bailee. 
Two  counts  in  a  declaration  in  detinue,  one  counting  on  a  right 
of  property  in  the  plaintiff,  and  the  other  on  a  right  of  posses- 
sion in  him  as  bailee.     Held :  Here  is  no  misjoinder  of  counts. 

In  the  case  of  Greenlee  vs.  Bailey,  9  Leigh,  526,  decided  July, 
1838,  it  was  held :  Upon  the  death  of  a  defendant  in  detinue,  if 
his  administrator  consents  that  the  cause  shall  stand  revived 
against  him,  such  consent  places  the  cause  in  the  same  situa- 
tion that  it  would  be  in  after  the  service  of  a  scire  facias  against 
the  administrator,  alleging  that  the  property  had  come  to  his 
possession  and  was  detained  by  him. 


N 


Citations  to  the  Code  of  Virginia.  569 

In  such  a  case,  if  the  administrator  instead  of  pleading  de  novo 
go  to  trial  upon  a  plea  put  in  bj  his  intestate,  he  cannot,  after 
verdict  against  him,  arrest  the  judgment  because  of  his  own 
failure  to  plead  anew.  The  judgment  against  the  administrator 
in  such  a  case  is  personal  against  him  for  the  property  or  its 
alternative  value ;  but  it  provides  as  to  the  damages  and  costs, 
that  the  same  are  to  be  levied  of  the  goods  and  chattels  of  the 
intestate  in  the  hands  of  the  administrator. 

In  the  case  of  Martin  vs.  Martin,  12  Leigh,  495,  decided 
January,  1842.  S.  brings  detinue  against  J.  for  one  slave,  and 
J.  detinue  against  S.  for  three  slaves,  and  J.  brings  also  an  ac- 
tion of  debt  against  S.,  and  the  parties  agree  to  refer  all  matters 
in  difference  in  the  three  suits  to  two  arbitrators  and  their  um- 
pire, whose  awards,  or  the  awards  of  their  umpire,  to  be  made 
the  judgments  of  the  court;  which  submission  is  made  a  rule 
of  the  court.  The  arbitrators  proceed  to  arbitrate  the  two  ac- 
tions of  detinue,  and  make  an  award  therein  without  arbitrating 
the  action  of  debt.  In  their  award  the  date  of  the  submission 
is  not  recited,  and  the  submission  is  recited  as  referring  to  arbi- 
tration the  two  actions  of  detinue  only ;  and  the  award  in  J.'s 
action  of  detinue  against  S.  gives  J.  the  three  slaves  demanded 
in  his  declaration,  and  two  other  slaves,  the  increase  of  a  female 
slave,  demanded,  bom  after  the  action  brought.  Held:  Neither 
the  omission  to  state  the  date  of  the  submission  in  the  award, 
nor  the  recital  of  the  submission  as  referring  the  two  actions  of 
detinue  only,  nor  the  failure  to  proceed  to  asbitration  of  the 
action  of  debt,  is  a  good  ground  of  objection  to  the  award  under 
the  terms  of  this  submission. 

In  the  case  of  Monns  vs.  Peregoy,  7  Grat.,  373,  decided  May 
5,  1851,  it  was  held:  In  an  action  of  detinue,  the  recovery  may 
be  not  only  for  a  female  slave  named  in  the  writ,  but  for  her 
children  bom  since  the  commencement  of  the  suit. 

In  the  case  of  Hunts  Administrator'^^.  Martin! s  Administra- 
tor^ 8  Grat.,  578,  decided  April,  1852,  it  was  held :  Where  a  de- 
fendant in  detinue  dies,  and  the  action  is  revived  against  his 
administrator  with  the  will  annexed,  the  plaintiff  is  entitled  to 
demand  from  the  administrator  not  only  the  property  sued  for, 
but  damages  for  its  detention,  and  the  costs  incurred  in  prose- 
cuting the  original  action  against  the  testator  in  his  lifetime. 

The  scire  facias  to  revive  the  action  of  detinue  against  the 
administrator  should  suggest  the  coming  of  the  property  into 
the  hands  of  the  administrator  since  the  death  of  the  testator; 
and  the  scire  facias  not  being  in  the  record  nor  in  the  clerk's 
office  of  the  court  below,  and  no  objection  appearing  to  have 
been  taken  to  it  in  that  court,  this  court  will  presume  that  it 
was  in  all  respects  regular. 

Where  an  action  of  detinue  is  revived  against  an  administra- 


570  Citations  to  the  Code  of  Virginia. 

« 

tor  with  the  will  annexed,  and  a  judgment  is  recovered,  th& 
judgment  for  the  damages  for  detention  of  the  property  and 
the  costs  should  not  be  against  the  administrator  personally, 
but  against  him  as  administrator,  to  be  levied  of  the  goods,  etc., 
of  his  testator  in  his  hands  to  be  administered. 

The  reference  to  17  Grat.,  490-502,  is  an  error,  as  the  case  is 
not  of  value  on  this  point.  ^ 

Section  2912. 

In  the  case  of  Butler  vs.  Parks,  1  Wash.,  76,  decided  at  the 
spring  term,  1792,  it  was  held :  Where  a  verdict  is  rendered  for 
part  of  the  property  demanded  in  the  writ,  and  is  silent  as  to 
the  residue,  the  verdict  must  be  set  aside.     Hence  the  statute. 

In  the  case  of  Iligginhotham  vs.  Rucker^  2  Call,  313  (2d  edi- 
tion, 265),  decided  April  19,  1800,  it  was  held :  If  in  a  declara- 
tion for  several  slaves,  laying  separate  values,  the  jury  find  a 
joint  value,  it  is  error,  and  as  to  that  a  venire  facias  de  novo  will 
be  awarded  under  the  act  of  assembly  in  order  to  ascertain  the 
separate  values. 

In  the  case  of  Cornvjell  vs.  Truss,  2  Munf.,  195,  decided 
March,  1811,  it  was  held:  In  detinue  for  several  slaves,  if  their 
value  be  jointly  assessed  in  the  verdict,  judgment  ought  not  to- 
be  entered,  but  a  writ  of  inquiry  to  ascertain  theii"  respective 
values  should  be  awarded. 


TITLE  XLII. 
CHAPTER  CXXXIX. 

Section  2915. 


In  the  case  of  SeeJcright  on  demise  of  Gore  vs.  Lawson  et  als., 
8  Leigh,  458,  decided  August,  1836,  it  was  held :  Though  waste 
and  unappropriated  land  be  claimed  by  the  patentee  of  adjoin- 
ing land  as  being  included  within  the  boundaries  of  his  patent, 
and  actual  possession  thereof  be  taken  by  such  patentee  and 
maintained  for  fifteen  years,  such  possession  cannot  be  adver- 
sary to  the  Commonwealth,  and  her  grantee  of  the  land  is  con- 
sequently entitled  to  recover  it. 

In  the  case  of  Dawson  vs.  Watkins,  2  Rob.,  259,  decided 
August,  1843.  The  demandant  in  a  writ  of  right  claims  the 
land  (of  which  the  tenant  is  in  possession)  under  a  patent  bear- 
ing date  the  17th  of  June,  1876,  and  the  tenant  disproves  the 
constructive  seisin  of  the  demandant  by  showing  a  patent  for  a 
large  tract  embracing  the  same  land,  which  issued  as  early  as 
the  1st  of  December,  1773.  Whereupon  the  demandant,  ta 
establish  a  seisin  in  deed  by  a  pedis  positio,  proves  that  the- 


Citations  to  the  Code  of  Virginia.  571 

patentee,  under  whom  the  claims  came  in  1824  or  1825,  to  the 
county  in  which  the  land  lies,  and  emploj'ed  an  agent  to  enter 
upon  and  survey  the  said  land  and  various  other  tracts  in  the 
same  county ;  that  the  said  agent  procured  a  surveyor  and 
chain-carriers  immediately  thereafter,  who  went  upon  the  land 
in  question  and  surveyed  and  remarked  the  same  for  the 
patentee.  Held :  These  facts  are  not  sufficient  to  authorize  a 
jury  to  find  a  seisin  in  the  demandant. 

In  the  case  of  Taylor's  Devisors  vs.  Burnsides,  1  Grat.,  165, 
decided  September,  1844,  it  was  held :  If  the  tenant  in  a  writ  of 
right  would  protect  himself  by  the  plea  of  the  statute  of  limita- 
tions, he  must  show  that  he  entered  on  the  land  in  controversy, 
claiming  the  same  under  his  junior  grant,  when  the  demandants 
had  not  actual  possession  thereof  under  their  elder  patent,  and 
took  and  held  actual  possession  thereof  by  residence,  improve- 
ment, cultivation,  or  other  open,  notorious,  and  habitual  acts  of 
ownership,  and  so  continued  the  same  for  more  than  twenty-five 
years  before  the  commencement  of  the  demandant's  suit.  If  the 
tenant,  or  those  under  whom  he  claims,  have  abandoned  their 
possession  within  the  twenty-five  years,  the  statute  of  limita- 
tions is  no  bar  to  the  demandant's  title  under  his  elder  patent. 

The  tenant  cannot  sustain  his  defence  of  continued  adversary 
possession,  so  as  to  make  the  statute  a  bar,  if  the  demandants, 
or  those  under  whom  they  claim,  have,  within  the  period  of 
twenty-five  years  before  bringing  the  action,  entered  upon  the 
land  in  controversy,  and  taken  actual  possession  thereof  by  resi- 
dence, improvement,  cultivation,  or  other  open,  notorious,  and 
habitual  acts  of  ownership. 

In  the  case  of  Overtoris  Heirs  vs.  Davisson,  1  Grat.,  211,  de- 
cided September,  1844,  it  was  held :  When  land  which  is  the 
subject  of  controversy  is  embraced  by  conflicting  grants  from 
the  Commonwealth  to  different  persons,  and  the  junior  patentee 
enters  thereupon,  and  takes  and  holds  actual  possession  of  any 
part  thereof,  claiming  title  to  the  whole  under  his  grant,  such 
adversary  possession  of  part  of  the  land  in  controversy  is  an 
adversary  possession  of  the  whole,  to  the  extent  of  the  limits  of 
the  younger  patentee,  and  to  that  extent  is  an  ouster  of  the  seisin 
or  possession  of  the  elder  patentee,  if  the  latter  has  no  actual 
possession  of  any  part  of  the  land  within  his  grant.  In  the  case 
above  stated,  if  the  older  patentee  is  in  the  actual  possession  of 
any  part  of  the  land  in  controversy  at  the  time  of  the  entry 
thereon  of  the  junior  patentee,  then  the  latter  can  gain  no  ad- 
versary possession  beyond  the  limits  of  his  mere  enclosure 
without  an  actual  ouster  of  the  older  patentee  from  the  whole 
of  the  land  in  controversy. 

Upon  the  question  of  adversary  possession,  it  is  immaterial 
whether  the  land  in  controversy  is  embraced  by  one  or  several 


572  Citations  to  the  Code  of  Vikginia. 

coterminous  grants  of  the  older  or  younger  patentee ;  in  either 
case  the  land  granted  to  the  same  person  by  several  patents  is 
regarded  as  forming  one  entire  tract.  Qucere:  Whether  the 
possession  of  the  junior  patentee  will  be  limited  to  his  enclosure 
by  the  actual  possession  of  the  elder  patentee  of  a  part  of  the 
land  embraced  in  his  grant,  not  embraced  in  the  limits  of  the 
grant  to  the  junior  patentee?  To  constitute  an  adversary  pos- 
session of  the  land  there  must  be  an  actual  occupation  of  some 
part  of  the  land  in  controversy,  or  the  use  or  enjoyment  of 
fiome  part  thereof,  by  acts  of  ownership  equivalent  to  such 
actual  occupation,  and  such  adversary  possession  cannot  be  ac- 
quired by  the  open  exercise  of  acts  of  ownership  over  the  same 
falling  short  of  such  actual  occupation,  use,  or  enjoyment.  When 
patented  lands  remain  completely  in  a  state  of  nature,  they  are 
not  susceptible  of  a  disseisin  or  ouster  of,  or  adversary  posses- 
sion against,  the  older  patentee,  unless  by  acts  of  ownership 
effecting  a  change  in  their  condition. 

A  possession  of  lands  not  held  under  a  grant  from  the  Com- 
monwealth prior  to  the  emanation  of  any  patent  therefor  to  a 
third  person  cannot  constitute  an  adversary  possession  thereof. 
The  elder  patent  of  the  Commonwealth  confers  seisin  of  the 
land  embraced  therein,  though  at  the  time  of  its  emanation 
there  was  an  actual  occupation  of  the  land  by  another  per- 
son. 

In  a  controversy  between  parties  claiming  land  under  the 
elder  and  junior  patentee,  the  party  claiming  under  the  latter, 
to  protect  his  possession  by  the  defence  of  the  statute  of  limita- 
tions, must  show  an  actual  possession  of  the  lands  in  contro- 
versy since  the  emanation  of  the  elder  patent  for  the  time  of 
limitation  fixed  by  the  statute.  If  the  possession  of  the  tenant 
in  possession  was  sufficient  to  bar  the  action  of  the  ancestor  of 
the  demandants  at  the  time  of  his  death,  it  is  sufficient  to  bar 
the  action  of  his  heirs. 

In  the  case  of  Furcell  vs.  Wilson,  4  Grat.,  16,  decided  April, 
1847,  it  was  held :  The  possession  of  one  coparcener  or  tenant 
in  common  being  the  possession  of  all,  none  in  possession  of  the 
whole  subject  can  avail  themselves  of  such  possession  as  a  de- 
fence under  the  statute  of  limitations  against  the  rest,  without 
an  actual  disseisin  or  ouster  of  their  coparceners  or  tenants. 

A  special  verdict  in  a  writ  of  right,  where  the  defence  is  the 
statute  of  limitation,  must  find  either  an  actual  disseisin  or 
ouster  of  the  demandants,  or  those  under  whom  they  claim,  or 
facts  which  in  law  constitute  such  actual  disseisin  or  ouster. 
Though  a  great,  lapse  of  time,  with  other  circumstances,  may 
warrant  a  presumption  of  a  disseisin  or  ouster  by  one  copar- 
cener or  tenant  in  common  of  another  not  laboring  under  dis- 
abilities, this  presumption  is  a  matter  of  evidence  for  the  con- 


Citations  to  the  Code  op  Virginia.  573 

sideration  of  the  jury,  and  not  a  question  of  law  for  the  decision 
of  the  court  upon  a  special  verdict. 

In  the  case  of  Middleton  vs.  Johns  et  als.,  4  Grat.,  129,  de- 
cided July,  1847,  it  was  held :  A  person  having  held  actual 
possession  of  land  for  more  than  fifteen  years  under  color  of 
title,  and  being  then  ousted  by  another  who  is  a  mere  trespasser 
without  pretence  of  title,  may  recover  in  ejectment  against  such 
trespasser,  though  it  does  not  appear  that  the  land  has  ever 
been  granted  by  the  Commonwealth. 

In  the  case  of  /^obineti  ys.  Preston  s  IIe^'rs,4i  Grat.,  141,  decided 
July,  1847,  it  was  held :  It  seems  that  for  the  statute  of  limita- 
tions to  be  a  good  defence  for  the  tenant,  his  possession  must 
be  adverse  to  and  not  under  the  title  of  the  demandants. 

In  the  case  of  Shanks  et  als.  vs.  Lancaster,  5  Grat.,  110,  de- 
cided July,  1848,  it  was  held :  There  can  be  no  adversary  pos- 
session against  the  Commonwealth,  and,  therefore,  a  junior 
patentee  cannot  go  behind  the  elder  patent  for  the  purpose  of 
giving  color  to  his  possession  prior  thereto.  But  a  junior 
patentee  may  go  behind  his  own  patentj  and  also  behind  the 
elder  patent,  for  the  purpose  of  giving  color  to  his  possession 
from,  or  subsequently  to,  the  granting  of  the  elder  patent. 

It  is  immaterial  whether  an  adversary  possession  under  a  claim 
of  title  be  under  a  good  or  a  bad,  legal  or  an  equitable  title. 

A  tenant  in  ejectment  claiming  under  a  junior  patent  founded 
on  an  inclusive  survey  may,  to  show  possession  under  color  of 
title  prior  to  his  patent,  introduce  in  evidence  the  entries  for 
the  different  tracts  embraced  in  the  inclusive  survey,  the  order 
of  court  authorizing  the  survey,  and  the  survey  itself. 

In  the  case  of  Pasley  vs.  English  et  als.,  5  Grat.,  141,  de- 
cided July,  1848,  it  was  held :  A  temporary  possession  of  land 
by  cutting  and  sawing  timber  upon  it  is  not  such  adversary 
possession  as  will  give  title. 

In  the  case  of  Evans  and  Wife  vs.  Spurgin,  6  Grat.,  107,  de- 
cided July,  1849,  it  was  held:  The  possession  of  the  original 
owner,  and  of  those  claiming  under  him,  from  the  time  of  the 
sale  by  the  commissioners  until  the  final  decree,  was  not  an 
adverse  possession  to  the  purchaser  and  those  claiming  under 
him. 

In  the  case  of  Ilannon  et  als.  vs.  Ilannon,  9  Grat.,  146,  de- 
cided August  11,  1852.  A.  conveyed  lands  in  the  western  part 
of  the  State  to  S.  by  a  deed  dated  December  13,  1814,  which 
was  recorded  January  25,  1815,  in  the  county  of  Hanover, 
where  the  grantor  lived,  but  not  in  the  county  where  the  lands 
lay.  This  deed  recites  that  A.  is  the  heir  at  law  of  his  son,  to 
whom  the  lands  were  patented.  S.,  by  a  deed  recorded  in  Ka- 
nawha, conveyed  to  J.  W.  and  W.  two-thirds  of  all  the  lands, 
wherever  the    same    might  be   found,   conveyed  by  A.   to    S. 


574  Citations  to  the  Code  of  Virginia. 

by  deed  dated  December  13,  1814,  and  recorded  in  Hanover 
County  Court  January  25,  1815.  This  deed  refers  to  and  re- 
cites the  provisions  of  the  deed  from  A.  to  S.  In  September, 
1824,  J.  W.  conveyed  to  P.  an  undivided  third  part  of  a  tract 
of  three  thousand  and  eighty  acres  of  land  in  Mason  county. 
This  third  part  vested  in  the  heirs  of  P.  and  his  alienees,  H. 
and  B.  In  1845  W.  conveyed  his  third  part  of  this  land  in 
Mason  county  to  H.,  who  filed  a  bill  for  partition  against  the 
heirs  of  S.  and  the  heirs  and  alienees  of  P.  An  office  copy  of 
the  deed  from  A.  to  S.  was  filed  by  the  plaintiff  and  was  ex- 
cepted to  by  the  defendants,  the  heirs  and  alienees  of  P.,  and 
B.  claimed  part  of  the  land  under  a  patent  to  himself,  issued 
after  the  institution  of  this  suit.  Held :  As  B.  has  shown  no 
forfeiture  of  the  land  or  transfer  of  a  forfeited  title  to  him,  and 
as  the  Commonwealth  had  previously  granted  the  land  to  A., 
the  land  was  not  waste  and  unappropriated,  and  nothing  passed 
by  the  junior  grant  to  B. ;  and  as  the  patent  issued  after  the 
institution  of  this  suit,  there  could  be  no  adverse  possession 
under  it. 

The  payment  of  taxes  on  an  undivided  third,  or  a  convey- 
ance of  a  portion  by  metes  and  bounds,  not  followed  by  actual 
entry  and  possession,  does  not  constitute  an  actual  ouster  by 
one  tenant  in  common  of  his  co-tenant. 

In  the  case  of  CreigJis  Heirs  vs.  Henson,  10  Grat.,  231,  de- 
cided July,  1853.  In  May,  1816,  A.  conveys  to  S.  a  tract  of 
land  in  trust  to  secure  a  debt  to  C,  which  is  duly  recorded  on 
the  same  day,  and  in  October  of  the  same  year  he  executes  to 
H.  a  title  bond  for  a  part  of  the  land,  and  H.  immediately 
enters  into  possession,  cultivating  and  farming  and  claiming  it 
under  said  bond,  and  continues  thus  to  hold  possession ;  A., 
during  his  lifetime,  and  his  family  since,  having  resided  on  the 
residue  of  the  tract.  In  1827  the  trustee,  S.,  sells  under  the 
trust  and  conveys  the  land  to  C,  the  purchaser.  In  1848  the 
heirs  of  C.  bring  ejectment  against  H.  for  the  land  in  his  pos- 
session, and  there  is  a  special  verdict  which  does  not  find  an 
ouster  or  disclaimer  by  H.  Held:  That  the  possession  of  A. 
after  the  deed  was  as  a  tenant  by  sufferance,  and  that  the  pos- 
session by  H.  after  his  entry  was  of  the  same  character;  and 
therefore  the  statute  of  limitations  is  no  bar  to  the  action. 

In  the  case  of  Clarke  vs.  McClurr,  10  Grat.,  305,  decided 
July,  1853,  it  was  held :  An  open,  exclusive,  notorious  and  un- 
interrupted possession  of  the  land  for  more  than  twenty  years, 
taken,  held  and  claimed  under  a  parol  gift  from  a  plaintiff  in 
ejectment  for  life,  not  yet  terminated,  is  no  bar  to  his  recovery 
in  the  action. 

As  a  general  rule,  possession,  to  give  title,  must  be  adversary; 
and  where  a  defendant  has  entered  under  a  plaintiff,  and  ac- 


Citations  to  the  Code  of  Virginia.  575 

tnowledged  his  title  as  that  under  which  he  holds,  he  cannot 
<;ontrovert  it. 

To  make  out  a  title  by  adverse  possession,  as  a  general  rule, 
the  title  must  be  adverse  in  its  inception.  An  adverse  posses- 
sion depends  upon  the  intention  with  which  the  possession  was 
taken  and  held.  Wherever  the  act  itself  imports,  and  there  is 
a  superior  title  in  another,  by  whose  permission  and  in  subordi- 
nation to  whose  still- continuing  and  subsisting  title  the  entry  is 
made,  such  entry  cannot  be  adverse  to  the  owner  of  the  legal 
title ;  and  such  possession  so  commencing  cannot  be  converted 
into  an  adverse  possession  but  by  disclaimer,  the  assertion  of 
an  adverse  title  and  notice. 

A  vendee  who  enters  under  an  executory  contract  which  leaves 
the  legal  title  where  it  was,  and  contemplates  a  future  convey- 
ance, enters  in  subordination  to  it,  holds  under  and  relies  upon 
it  to  protect  his  possession  in  the  meantime.  And  in  such  case, 
as  is  also  in  the  case  of  lessee,  mortgagor,  cestui  que  trust  and 
the  like,  where  it  is  under  the  owner  of  the  legal  title  a  privity 
exists  which  precludes  the  idea  of  a  hostile  tortious  possession, 
which  would  silently  ripen  into  a  title  by  adverse  possession 
under  the  statute  of  limitations. 

An  entry  on  land  under  a  parol  gift  from  the  owner,  and  a 
claim  to  hold  an  estate  by  virtue  of  the  gift,  is  in  its  nature  a 
recognition  of  the  continued  existence  of  a  subsisting  title  in 
the  legal  owner;  and  a  claim  to  hold  any  estate  by  gift  from  the 
legal  owner  is  a  claim  to  hold  in  subordination  to  his  legal  title. 

In  the  case  of  Anderson  vs.  Harvey's  Heirs,  10  Grat.,  386, 
decided  July,  1853.  R.  held  a  patent  for  one  thousand  two 
hundred  acres  of  land,  and  H.  held  a  junior  patent  for  two 
thousand  one  hundred  acres,  which  covered  a  part  of  the  land 
included  in  R.'s  patent.  By  a  decree  made  in  1807,  R.  was  di- 
rected to  convey  to  H.  that  part  of  the  land  covered  by  his 
patent  which  was  included  in  the  patent  of  H.  No  deed  was 
executed,  but  in  1805  H.  entered  upon  this  contract  and  culti- 
vated and  improved  a  part  of  it,  though  not  the  part  included 
in  the  patent  of  R.  He  held  possession  of  this  land  until  his 
death  in  1831,  and  his  heirs  continued  to  hold  possession. 

There  was  no  actual  occupancy  of  the  interlock  until  1836, 
when  a  purchaser  under  R.  cut  the  timber  upon  it  and  converted 
it  into  coal.  R.  died  in  1817,  and  in  1834  his  executor  and  de- 
visees conveyed  the  one  thousand  two  hundred  acres,  one  of 
which  of  junior  date  to  that  covered  the  same  interlock,  and  his 
executor  and  devisees,  by  deed  of  the  same  date  of  the  otlier, 
conveyed  to  the  same  parties  these  several  tracts  of  land  with- 
out any  reference  to  the  decree  of  1807.  The  subsequent  con- 
veyances of  this  property  either  referred  to  these  deeds  or  re- 
ferred to  subsequent  deeds  which  referred  to  them.     In  1845, 


576  Citations  to  the  Code  of  Virginia. 

A.,  the  then  owner  of  the  land  under  E.,  took  iron  ore  from 
the  interlock  aforestiid,  and  the  heirs  of  H.  filed  a  bill  to  en- 
join him.  Held:  H.  having  entered  upon  his  land  and  im- 
proved it,  and  held  possession  under  his  patent  and  decree  of 
1807,  his  possession  and  that  of  his  heirs  gave  them  a  perfect 
title  to  the  extent  of  the  limits  of  his  patent. 

The  temporary  occupancy  of  the  purchaser  under  E..,  and 
the  cutting  and  taking  off  the  wood  from  the  interlock,  was  not 
a  disseisin  of  the  heirs  of  H. 

In  the  case  of  Koiner  vs.  liankin's  Heirs,  11  Grat.,  420,  de- 
cided July,  1854,  it  was  held :  The  effect  of  a  patent  issued 
upon  an  inclusive  survey,  and  the  right  of  the  tenant  claiming 
under  it  to  show  possession  under  color  of  title,  is  the  same  as 
in  other  grants.  He  may  give  in  evidence  the  entrance  for  the 
different  tracts  embraced  in  the  inclusive  survey,  the  order  of 
court  authorizing  the  survey,  and  the  survey  made  in  pursuance 
of  the  order.  But  he  cannot  show  possession  further  back  than 
the  senior  grant. 

To  protect  himself  under  the  statute  of  limitations,  the  tenant 
must  show  continued  adversary  possession  for  the  time  of  limi- 
tation of  some  part  of  the  land  in  controversy.  Actual  posses- 
sion of  a  part  of  his  land  outside  of  the  boundaries  of  the  de- 
mandant's elder  patent  is  not  sufficient. 

While  patented  lands  remain  uncleared,  or  in  a  state  of  na- 
ture, they  are  not  susceptible  of  adversary  possession  against 
the  elder  patentee,  unless  by  acts  of  ownership  effecting  a  change 
in  their  condition. 

In  the  case  of  Caperton  et  als.  vs.  Gregory  et  als.  {Lessee),  11 
Grat.,  505,  decided  July,  1854.  J.  T.  died  in  1823,  leaving  seven 
children,  and  seised  in  fee  of  a  tract  of  land.  S.  T.,  one  of  his 
sons,  took  possession  of  the  land  soon  after  his  death,  claiming 
that  J.  T.  had  made  a  will  giving  it  to  him  for  life,  with  re- 
mainder to  his  two  sons;  and  he  filed  a  bill  against  the  other 
heirs  to  set  up  the  will,  which  could  not  be  found.  The  suit 
was  pending  until  1837,  when  it  was  dismissed  for  a  failure  to 
give  security  for  costs.  S.  T.  held  the  exclusive  possession  of 
the  land  during  his  life,  and  his  two  sons,  and  those  claiming 
under  them,  continued  to  hold  it  until  1844,  when  the  other 
heirs  filed  a  bill  for  partition  of  the  land,  and  in  that  suit  the 
court  directed  that  the  plaintiffs  should  first  establish  their  title 
at  law.  At  the  death  of  J.  T.  four  of  his  heirs  were  married 
women,  and  three  of  them  so  continued;  one  of  them  died  in 
1832,  leaving  infant  children  and  her  husband  surviving  her, 
and  he  died  in  1833;  this  suit  was  brought  in  1848.  Held: 
That  S.  T.,  having  taken  possession  of  the  land  in  1823,  claiming 
title  to  it,  and  his  sons  having  possession  on  his  death,  and  they 
and  those  claiming  under  them  having  continued  to  hold  the  land 


Citations  to  the  Code  of  Vikqinia.  577 

claiming  title,  such  taking  and  holding  possession  was  adverse  to 
the  other  heirs,  and  the  statute  of- limitations  commenced  to  run 
from  the  time  of  such  taking  possession  by  S.  T. 

That  the  pendency  of  the  suit  brought  by  S.  T.  to  set  up  th6 
will  of  J.  T.  did  not  prevent  the  running  of  the  statute ;  that, 
having  commenced  to  run,  could  not  be  stopped  by  anything  oc- 
curring subsequently ;  and,  moreover,  the  will  as  will  of  lands 
being  valid  without  probate,  and  the  suit  being  not  to  acquire 
title,  but  to  establish  evidence  of  title. 

If  in  the  suit  for  partition  the  heirs  of  J.  T.  had  alleged  and 
proved  any  equitable  grounds  to  repel  the  statute,  the  chancery 
court  might  have  given  it  effect  by  an  order  when  directing  the 
suit  to  be  brought  for  trial  of  title,  but  no  such  ground  hav- 
ing been  shown,  and  no  such  order  made,  the  statute  must  have 
the  operation  which  a  common  law  court  ascribes  to  it. 

The  statute  runs  against  the  femes  covert  and  their  husbands, 
so  as  to  bar  a  recovery  during  the  coverature. 

The  infant  children  of  the  female  heir  who  died  a.  feme  covert, 
are  barred  after  three  years  from  the  death  of  their  mother, 
though  they,  may  continue  infants  all  the  time. 

In  the  case  of  Cline's  Heirs  vs.  Catron^  22  Grat.,  378,  decided 
July  6,  1872,  it  was  held :  The  possession  which  would,  under 
the  former  law,  render  a  conveyance  by  a  party  out  of  posses- 
sion inoperative,  must  have  been  an  adversary  possession. 

In  the  case  of  Nowlhi  vs.  Reynolds,  25  Grat.,  137,  decided 
June,  1874.  In  1845  N.  sold  a  tract  of  land  to  his  son  C,  who 
was  then  seventeen  years  of  age,  received  the  entire  purchase- 
price,  executed  a  deed  or  title  bond  thereto,  which  was  lost  or 
mislaid  aad  never  entered  of  record,  and  delivered  it  to  C.  and 
put  him  in  possession  of  the  land,  who  immediately  went  to 
work  and  erected  a  dwelling  house  thereon  and  put  up  other 
buildings.  Soon  after  this  sale  was  made  to  C,  N.  conveyed 
his  land  and  other  property  to  S.  to  secure  certain  debts,  and 
in  1869  the  trustee  sold  the  land  under  the  deed  of  trust  to  R., 
who  brought  ejectment  against  C.  to  recover  the  land.  On  the 
trial,  after  K.  had  introduced  the  said  deeds,  C.  proved  the 
above  facts  and  then  proposed  to  prove  that  he  had  been  in 
actual  adverse  and  peaceable  possession  of  the  land  for  more 
-than  twenty  years  before  the  institution  of  the  suit.  Held :  It 
is  clear  that  the  possession  of  a  mere  intruder  on  the  land  of 
another  with  pretence  or  color  of  title,  no  matter  how  long  such 
possession  may  continue,  will  not  be  deemed  at  law  adverse  to 
the  title  of  the  true  owner,  and  can  never  ripen  into  a  good  title. 
But  it  is  equally  clear  that  possession  under  color  or  claim  of 
title  does  amount  to  adverse  possession,  and  if  held  long  enough 
under  the  law,  will  ripen  into  a  good  title ;  and  it  is  not  necessary 
to  constitute  an  adverse  possession  that  there  should  be  a  rightful 
37 


578  Citations  to  the  Code  of  Virginia. 

title.  But  the  bolder  and  claimant  of  property  under  an  equitable 
title  derived  from  a  vendor  or  grantor,  who  retains  the  legal  title 
for  future  conveyance,  does  not  hold  adversely  but  in  subordina- 
tion to  the  grantor's  title ;  and  no  length  of  possession  under  such 
title  will  ripen  into  a  legal  title.  Whether  the  contract  is  ex- 
ecutory or  executed;  whether  the  defendant  or  vendee  claims 
title  under  an  absolute  deed  or  not,  is  a  question  of  fact  for  the 
jury  and  not  of  law  for  the  court. 

if  the  claim  of  C.  was  under  a  deed  purporting  to  convey  the 
title  to  the  property,  whether  recorded  or  not,  an  exclusive  pos- 
session under  such  title  is  adverse,  not  only  against  the  grantor 
himself,  but  against  all  the  world.  The  evidence  should  be  ad- 
mitted. 

In  the  case  of  Norfolk  City  vs.  Cooke,  27  Grat.,  430,  decided 
April  13,  1876,  it  was  held :  The  city  of  Norfolk  is  the  owner  of 
the  ground  which  she  has  not  disposed  of,  covered  by  water, 
lying  between  Parker  street  and  the  port- warden's  line,  both  as 
riparian  proprietor  and  as  having  had  long  possession  thereof, 
and  the  city  may  maintain  an  action  of  unlawful  entry  and  de- 
tainer against  any  intruder  on  said  water  lots. 

In  the  case  of  Thomas  vs.  Jones,  28  Grat.,  383,  decided  April 
19,  1877,  it  was  held:  J.  has  held  possession  of  a  piece  of 
ground  in  a  city  for  forty  years,  which  in  all  that  time  has  been 
within  his  enclosure,  claimed  by  him  and  cultivated  as  his  own 
property.  His  said  possession  has  been  and  is  adverse  to  T. 
and  those  under  whom  he  claims,  claiming  the  land,  and  the 
statute  of  limitations  is  a  bar  to  any  claim  which  T.  might  other- 
wise have  to  the  land,  and  the  title  of  J.  thereto,  even  if  it  may 
not  have  been  originally  good,  has  thus  matured  and  become 
perfect  by  adverse  possession  and  by  lapse  of  time,  and  the 
operation  of  the  statute  of  limitations. 

In  the  case  of  Turpin  vs.  Saunders,  32  Grat.,  27,  decided 
July,  1879.  In  1830  B.,  holding  a  large  tract  of  land  called  the 
Austin  Nicholas  survey,  conveyed  twenty-five  thousand  acres  of 
it  to  W.,  and  three  years  thereafter  conveyed  twelve  thousand 
acres  of  the  same  survey  to  S.  W.  conveyed  to  G.,  G.  to  C, 
and  C.  to  T.,  the  defendant.  A  portion  of  the  land  conveyed 
to  S.  was  found  on  examination  to  have  been  embraced  in  the 
conveyance  to  W.,  under  whose  grantees  T.,  the  defendant, 
claims.  The  claim  being  that  of  an  interlock,  and  T.  and  his 
grantors  holding  the  older  title,  must  succeed,  unless  S.,  Jr.,  the 
plaintiff,  and  his  grantor  can  show  a  title  by  adversary  posses- 
sion, which  is  then  attempted.  No  possession  of  any  part  of 
the  land  in  controversy  was  shown  by  S.  prior  to  1842.  In  that 
year  one  Simpkins  settled  on  ten  or  twenty  acres  of  it.  Whether 
he  claimed  title  or  was  a  mere  squatter  does  not  appear ;  but 
he  did  not  claim  title  under  S.     Some  time  after  this  there  wag 


Citations  to  the  Code  of  Virginia.  579 

a  verbal  agreement  between  Simpkins  and  S.  that  Simpkins 
should  continue  in  possession  and  have  what  he  could  make  on 
the  land,  in  consideration  that  he  would  salt  the  cattle  of  S., 
which  he  was  in  the  habit  of  sending  to  this  county  to  range  on 
his  lands  there  every  spring;  S.  living  in  an  adjoining  county 
and  owning  other  lands  adjoining  those  in  controversy.  This 
arrangement  seems  to  have  continued  until  S.'s  death  in  1851. 
About  this  time  C,  under  whom,  as  aforesaid,  T,,  the  defendant, 
claims,  finding  Simpkins  in  possession  and  knowing  nothing  of 
his  contract  with  S.,  agreed  to  give  him  a  lease  of  the  land  in 
bis  possession,  which,  at  Simpkins's  request,  was  reduced  to 
writing.  Simpkins  remained  in  possession  until  1860,  when  he 
either  voluntarily  abandoned  or  was  driven  from  the  posses- 
sion. The  land  in  controversy  contained  about  three  thousand 
five  hundred  acres,  and  with  the  exception  of  the  small  clearing 
made  by  Simpkins,  was  at  the  time  of  these  occurrences  an  un- 
broken forest  and  in  a  state  of  nature.  In  an  action  of  ejectment 
brought  by  S.,  Jr.,  claiming  under  C.  a  grantee  from  W.  as 
aforesaid,  and  claiming  title  by  adverse  possession  on  the  ground 
that  the  possession  of  Simpkins  was  the  possession  of  S., ;  that 
Simpkins  having  accepted  a  lease  from  S.,  his  subsequent  at- 
tornment to  C.  was  null  and  void.  Held :  The  ground  upon 
which  an  adversary  title  is  established  is  the  supposed  laches  of 
the  true  owner.  Tlie  possession  of  the  adverse  claimant  must 
not  only  be  with  claim  of  title,  but  must  be  visible,  and  with 
such  notoriety  that  the  true  owner  may  be  presumed  to  know 
of  it;  and  Simpkins  rot  having  taken  possession  in  this  case 
under  claim  of  title  either  in  himself  or  in  S.,  and  S.  never  hav- 
ing exercised  any  notorious  acts  of  possession  over  the  land  in 
controversy,  either  through  Simpkins  as  his  tenant  or  in  any 
other  way,  S.,  Jr.,  his  grantee,  is  not  entitled  to  recover  in  this 
action  as  adversary  claimant. 

Wild  and  uncultivated  lands  cannot  be  the  subject  of  adver- 
sary possession  whilst  they  remain  completely  in  a  state  of 
nature.  A  change  in  their  condition  to  some  extent  is  essen- 
tial; without  such  change  accomphshed  or  in  progress  there 
can  be  no  occupation,  use  or  employment.  Evidence  short  of 
this  may  prove  an  adversary  claim,  but  cannot  establish  an  ad- 
versary possession.  The  only  improvement  on  the  land  in  con- 
troversy being  the  small  clearing  made  by  Simpkins,  this  did 
not  constitute  an  adversary  possession  under  the  circumstances 
of  this  case  in  any  just  and  legal  sense  of  the  term.  The 
residue  of  the  tract  being  in  a  state  of  nature  could  not  be  the 
subject  of  adversary  possession,  and  the  mere  fact  that  herds  of 
cattle  were  ])ermitted  to  wander  over  it  at  will  did  not  amount 
to  a  claim  of  ownership  of  the  property. 

In  the  case  of  Stonestreet  et  als.  vs.  Doyle  et  als.,  75  Va.,  356, 


580  Citations  to  the  Code  of  Virginia. 

decided  March  10,  1881,  it  was  held :  In  an  action  of  ejectment,, 
where  the  defendants  rely  npon  their  adversary  possession  of" 
the  premises,  they  must  show  not  only  entry,  but  they  must 
show  that  their  possession  has  been  continuous  during  a  period 
necessary  to  give  title  under  the  statute  of  limitations.  A  breaTc 
in  the  possession  restores  the  seisin  of  the  true  owner. 

In  the  case  of  Creehmur  vs.  Creekmur  et  als.,  75  Va,,  430, 
decided  April  14,  1881,  it  was  held:  Adversary  possession  must 
be  actual,  exclusive  and  notorious,  accompanied  by  a  l)oi^a  fide 
claim  of  title  against  that  of  all  other  persons,  and  it  must  be 
continued  for  the  period  of  the  statutory  bar.  A  mere  naked 
possession  without  a  claim  of  right,  no  matter  how  long,  never 
ripens  to  a  good  title,  but  is  regarded  as  being  held  for  the 
benefit  of  the  true  owners. 

In  the  case  of  Hollinsv)orth  vs.  Sherman  et  als.,  81  Va.,  668, 
decided  December  17,  1885,  it  was  held :  The  period  of  time 
necessary  to  ripen  possession  under  claim  of  right  into  com- 
plete title,  is  determined  by  limitations  provided  by  law  when 
plaintiffs  right  of  action  accrued. 

The  possession  requisite  to  bar  plaintiff's  right  of  entry  must 
be  actual,  exclusive,  uninterrupted,  visible,  notorious  and  hos- 
tile, and  must  continue  during  the  whole  period  of  statutory 
limitation.  Its  character,  however,  depends  upon  the  situation 
of  the  land  and  the  condition  of  the  country. 

When  several  persons  enter  upon  land  in  succession,  the 
several  possessions  cannot  be  tacked  so  as  to  preserve  the 
essential  continuity,  unless  there  is  privity  of  estate  between 
them,  or  the  several  estates  are  connected ;  but  one  cannot  sus- 
tain his  defence  of  adversary  possession  if,  during  the  period  of 
limitation,  the  possession  has  been  abandoned  by  him  or  those 
under  whom  he  claims. 

.  In  the  case  of  Virginia  Mining  and  Imp.  Company  vs.  Hoo- 
ver, 82  Va.,  449,  decided  October  7,  1886,  it  was  held :  The  ex- 
clusion, under  the  statutes  of  this  State,  and  the  decisions  of 
this  court,  of  the  period  of  seven  years,  eight  months,  and  thir- 
teen days,  between  April  17,  1861,  and  January  1,  1869,  applies 
to  actions  of  ejectment  equally  as  to  other  actions. 

In  the  case  of  Yates  vs.  Town  of  Wai^enton,  84  Va.,  337, 
decided  January  19, 1888.  Trustees  in  1811  laid  off  town,  locat- 
ing a  street  twenty-three  feet  wide.  Sui^vey  showed  that  plain- 
tiff had  all  the  land  called  for  in  his  deed,  and  included  Avithin 
his  enclosure  twenty-three  inches  of  said  street.  He  proved 
that  he  had  had  long  adverse  use  of  said  strip.     Held : 

1.  There  was  a  dedication  and  acceptance  of  the  streets  as 
located  by  the  trustees. 

2.  The  possessor  can  acquire  no  right  or  title  to  any  part  of 
such  highway  by  adverse  possession  thereof  for  any  length  of 
time  whatever. 


Citations  to  the  Code  of  Virginia.  581 

In  the  case  of  Whitlock  vs.  Johnson,  87  Va.,  323,  decided 
January  15,  1891,  it  was  held :  Where  sale  of  land  under  de- 
cree is  made  and  confirmed,  purchase-money  paid,  but  no  deed, 
and  former  owner's  heirs  remain  in  possession.  Held:  The 
-statute  of  limitations  does  not  begin  to  run  against  purchaser 
until  the  heirs  make  distinct  disavowal  of  his  title,  and  their  as- 
sertion of  adverse  claim  is  brought  home  to  him. 

In  the  case  of  Andrews  vs.  Roseland  Iron  and  Coal  Company^ 
89  Va.,  393,  decided  November  17,  1892,  it  was  held:  Uninter- 
rupted, honest,  adverse  possession  of  land,  under  color  of  title, 
for  the  statutory  period,  is  a  defence  to  an  action  of  ejectment 
by  a  party  claiming  under  a  senior  patent. 

Where  there  is  an  interlock  between  a  senior  and  a  junior 
patent,  and  there  has  been,  no  actual  possession  under  the 
former,  possession  of  the  interlock,  accompanied  by  claim  of 
title  to  the  whole  of  the  land  covered  by  the  junior  patent,  is, 
in  contemplation  of  law,  possession  of  the  whole. 

In  the  case  of  Straughan  et  als.  vs.  Wright  et  als.,  4  Rand., 
493,  decided  November,  1826,  it  was  held :  In  questions  purely 
equitable,  twenty  years  adverse  possession  will  bar  the  remedy 
of  the  plaintiff;  but,  where  the  court  is  only  called  upon  to  grant 
partition  under  a  legal  title,  which  is  disputed,  the  proper  course 
is  to  retain  the  cause  until  the  title  is  decided  at  law. 

In  the  case  of  Cresap  vs.  McLean  et  als.,  5  Leigh,  381,  decided 
April,  1834.  Grant  of  land  from  the  Commonwealth,  founded 
on  survey  as  containing  five  hundred  and  eighty-seven  acres, 
but  tlie  metes  and  bounds  described  in  the  survey  and  grant,  in 
fact,  include  one  thousand  two  hundred  and  ninety-three  acres. 
Held :  Tliough  the  grant  may  be  avoided  as  to  the  excess,  at  the 
suit  of  the  Commonwealth  timely  prosecuted,  yet  the  legal  title 
of  the  whole  one  thousand  two  hundred  and  ninety-three  acres 
passes  by  the  grant  to  the  grantee,  and  no  individual  claimant 
has  a  right  to  have  the  grant  avoided  for  the  excess. 

An  equitable  title  to  land  asserted  against  the  holder  of  the 
legal  title  is  barred  by  an  adversary  possession  of  more  than 
twenty  years  held  by  the  claimant  of  the  legal  title,  the  claim- 
ant of  the  eqaity  having  full  knowledge  of  such  possession  from 
its  commencement  and  being  under  no  disability. 

Section  2917. 
In  the  case  of  Birch  vs.  Sinton  et  ux.,  78  Va.,  584,  decided 
February  14,  1884,  it  was  held,  p.  589 :  It  is  well  settled  that 
an  infant's  conveyance  of  lands  is  voidable  only ;  and  after  at- 
taining majority  he  may  affirm  or  avoid  it.  No  notice  of  dis- 
affirmance is  required ;  entry  or  action  suffices.  Mere  silence  or 
inertness  for  any  period  short  of  bar  to  ejectment,  unaccom- 
panied by  some  confirmatory  act,  affirms  not  the  conveyance. 


582  Citations  to  the  Code  of  ViRamiA. 

Section  2918. 
In  the  case  of  Parsons  vs.  McCrackens,  9  Leigh,  495,  decided 
July,  1838,  it  was  held :  It  seems  that  if  a  party  claim  the  bene- 
fit of  the  saving  for  infants  and  femes  covert  in  an  act  of  limita- 
tions, no  other  disability  is  available  than  the  one  which  existed 
when  the  right  of  action  accrued. 

Section  2919. 

In  the  case  of  Hill  vs.  Rixey  <&  Starke,  26  Grat.,  72,  decided 
March  25,  1875,  it  was  held :  This  statute  does  not  apply  to  a 
judgment  creditor  to  relieve  him  from  the  necessity  of  docket- 
ing his  judgment. 

In  the  case  of  Danville  Bank  vs.  Waddill,  27  Grat.,  448,  de- 
cided March,  1876.  In  an  action  of  assumpsit  on  the  plea  of 
the  statute  of  limitations,  the  time  from  the  second  of  March, 
1866,  to  the  first  of  January,  1869,  is  to  be  left  out  of  the  com- 
putation. To  an  action  of  assumpsit  there  is  a  plea  of  payment 
and  of  the  statute  of  limitations.  On  the  trial  the  plaintiff  asks 
the  court  to  instruct  the  jury  that  in  passing  upon  the  plea  of 
the  statute  they  must  leave  out  of  the  computation  of  time  all 
the  period  extending  from  the  second  of  March,  1866,  to  the 
first  of  January,  1869.  The  court  refuses  to  give  the  instruc- 
tion and  plaintiff  excepts.  The  jury  find  a  general  verdict  for 
the  defendant  and  there  is  a  judgment  accordingly.  Held :  That 
the  appellate  court  will  reverse  the  judgment  for  the  error  in 
refusing  the  instruction  and  send  the  cause  back  for  a  new 
trial. 

In  the  case  of  Johnston  et  als.  vs.  Gill  et  als.,  27  Grat.,  587,^ 
decided  June,  1876,  it  was  held :  The  stay-law  suspended  the 
statute  of  limitations  as  to  suits  to  set  aside  fraudulent  con- 
veyances. 

In  the  case  of  Borst  vs.  JValle  et  als.,  28  Grat.,  423,  decided 
March,  1877,  it  was  held :  The  docketing  of  a  judgment  is  an 
act  to  be  done  to  preserve  or  prevent  the  loss  of  a  civil  right  or 
remedy  within  the  meaning  of  the  acts  of  March  4,  1862,  acts 
of  1861-62,  Chapter  81,  and  of  March  2,  1866,  Code  of  1873, 
Chapter  146,  Sections  6  and  7,  pp.  998-999.  And  therefore,  in 
computing  the  time  within  which  a  judgment  is  required  by  Sec- 
tion 8,  Chapter  186,  of  the  Code  of  1860,  to  be  docketed  in 
order  to  preserve  the  lien  of  such  judgment  against  purchasers, 
the  period  between  the  17th  of  April,  1861,  and  the  2d  of  March, 
1866,  is  not  to  be  computed  as  a  part  of  such  time. 

In  the  case  of  Justis  vs.  English  et  als.,  30  Grat.,  565,  decided 
July,  1878.  In  contemplation  of  the  marriage  of  B.  and  L.,  B., 
by  deed  in  which  L.  joined,  conveyed  her  property,  consisting 
of  personalty  and  a  life  estate  in  land,  to  M.,  in  trust  for  her 
separate  use,  with  full  power  in  her  to  dispose  of  the  rents  and 


Citations  to  the  Code  of  Virginia.  583 

profits  as  if  she  had  never  married,  and  to  transfer  in  such  pro- 
portion and  form  as  she  shall  from  time  to  time  direct,  notwith- 
standing her  coverture  by  any  writings  under  hand  and  seal, 
attested  by  three  or  more  credible  witnesses,  or  by  her  will  exe- 
cuted and  attested  in  the  same  mode.  By  a  paper  executed  as 
prescribed  in  the  deed,  B.  directed  her  trustee  to  purchase  two 
lots  to  be  paid  out  of  her  trust  fund,  and  this  was  done,  and  they 
were  conveyed  to  the  trustee  on  the  same  trusts.  These  deeds 
were  duly  recorded.  The  trustee  dying,  C.  and  W.  were  ap- 
pointed trustees.  Afterwards  B.,  by  deed  executed  by  herself 
alone,  and  acknow^l edged  by  her  in  the  clerk's  office  without 
privy  examination,  upon  full  consideration  conveyed  the  lots  to 
W.,  and  he  died,  and  they  were  sold  to  different  purchasers. 
B.  died  intestate  in  1862,  and  in  March,  1875,  her  heirs  file 
their  bill  against  the  purchasers  to  recover  the  lots.  Held: 
Mrs.  B.,  being  under  coverture  until  her  death  in  1862,  and  the 
statutes  of  limitations  having  been  suspended  until  December  31, 
1869,  the  statute  of  limitations  does  not  bar  the  claim  of  the 
heirs  of  B.,  and  under  the  circumstances  the  delay  in  bringing 
the  suit  does  not  bar  the  claim. 

Section  2920. 

In  the  case  of  Lornax  vs.  Pendleton,  3  Call,  538  (2d  edition, 
465),  decided  July  7,  1790,  it  was  held:  Where  the  plaintiff 
holds  a  right  of  action,  and  takes  in  satisfaction  thereof  a  bond, 
he  should  not  be  barred  unless  the  bond  was  a  payment  and 
gave  him  a  complete  right  of  action  for  the  amount  of  his 
claim. 

In  the  case  of  Clark  vs.  Ilardiman,  2  Leigh,  347,  decided 
October,  1830.  It.  makes  a  bill  of  sale  of  slaves  to  C.  without 
any  consideration,  and  notwithstanding  the  deed  remains  in  un- 
interrupted possession  for  twenty-five  years,  and  dies  in  posses- 
sion ;  after  his  death,  his  widow  claims  these  slaves  as  her  own 
property,  and  holds  adversary  possession  of  them  for  more  than 
five  years.  Then  administration  of  H.'s  estate  is  committed  to 
the  sheriff,  who  gets  possession  of  the  slaves,  and  a  creditor 
of  H.  who  had  recovered  judgment  against  the  sheriff,  adminis- 
trator, levies  an  execution  on  one  of  them,  which  is  sold  to  sat- 
isfy the  same ;  in  detinue  by  the  widow  against  the  purchaser. 
Held :  That  the  statute  of  limitations  did  not  entire  to  give  the 
widow  a  title  to  the  slave,  since  it  did  not  begin  to  run  till  an 
administrator  of  her  husband's  estate  was  appointed. 

In  the  case  of  Lynch  vs.  Thomas,  3  Leigh,  682,  decided  May, 
1832.  Testator  bequeathes  a  slave  to  an  infant  son,  and  then 
that  his  wife  shall  hold  the  slave  bequeathed  to  his  son  till  he 
shall  attain  to  full  age ;  the  executor  delivers  the  slave  to  the 
wife,  and  never  resumes  possession.     Held :  The  act  of  limita- 


584  Citations  to  the  Code  of  Virginia. 

tion  never  could  begin  to  run  against  the  claim  and  title  of  the 
son  to  the  slave  and  her  increase  till  he  attained  to  full  age. 

In  the  case  of  McAlexander  vs.  Montgomery,  4  Leigh,  61,  de- 
cided December,  1832.  Contract  to  locate  a  treasury  warrant 
on  lands  in  Kentucky  is  made  in  August,  1782,  and  it  appeared, 
the  breach,  if  any,  must  have  occurred  before  the  erection  of 
Kentucky  into  a  separate  State.  Held :  The  act  of  limitations  of 
Virginia  began  to  run  from  the  time  of  the  breach,  and  was, 
therefore,  a  bar  to  an  action  on  the  contract  brought  in  1816. 

In  the  case  of  Duncan  vs.  Wright,  11  Leigh,  542,  decided  Feb- 
ruary, 1841.  Testator  lends  three  slaves  to  his  daughter  during 
her  natural  life  and  to  her  heirs  lawfully  begotten  of  her  body, 
but  should  his  daughter  or  her  husband  dispose  of,  convey  out 
of  the  way,  conceal  or  attempt  to  alienate  the  slaves,  then  her 
title  to  them  ceases,  and  he  directs  his  executors  to  take  them  into 
possession,  and  after  her  decease,  they  and  their  increase  to  be 
divided  among  her  children;  the  daughter's  husband  sells  one 
of  the  slaves ;  the  testator's  executors  are  apprised  of  the  sale 
but  fail  to  take  the  slave  sold  into  their  possession,  or  to  bring 
any  action  to  recover  the  same ;  the  daughter  dies,  and  long 
after  the  lapse  of  five  years  from  the  date  of  sale,  but  within 
five  years  after  the  daughter's  death,  her  children  bring  detinue 
for  the  slave,  the  only  question  being  from  what  time  the 
statute  of  limitations  began  to  run.  Held:  The  rights  of  the 
children  accrued  upon  the  death  of  their  mother,  and  so  the 
statute  began  to  run  against  them  only  from  the  time  of  her 
death. 

In  the  case  of  Cookus  et  als.  vs.  Peyton's  Executor  et  als.,  1 
Grat.,  431,  decided  March,  1845,  it  was  held :  An  administrator, 
paying  away  the  assets  of  the  estate  to  distributees  without 
notice  of  debts  or  liabilities  of  his  intestate,  must  account  to 
creditors  for  the  amount  so  paid  away,  with  interest. 

In  the  case  of  Bowles'  Executor  vs.  Elmore's  Administratrix, 
7  Grat.,  385,  decided  May  5,  1851.  In  September,  1837,  the 
administratrix  of  E.  sued  the  executor  of  B.  in  a  debt  on  a  pro- 
missory note  dated  June,  1817.  The  executor  pleaded  the 
statute  of  limitations,  and  the  administratrix  replied  that  after 
making  the  note,  B.  having  become  the  bail  of  E.,  they  in  Octo- 
ber, 1818,  entered  into  a  covenant,  by  which  it  was  agreed  that 
E.  should  deliver  to  B.  the  note  of  B.,  who  was  to  hold  it  until 
the  liability  of  B.  as  bail  was  ended  and  then  he  was  to  redeliver 
it  to  E ;  that  pending  the  suit  E.  died,  in  February,  1832,  and 
there  was  no  administration  on  his  estate  until  August,  1836. 
There  was  a  demurrer  to  the  replication,  which  was  sustained, 
because  there  was  no  profert  of  the  covenant.  The  plaintiff 
was  then  allowed  to  amend  the  application  by  adding  the  pro- 
fert of  the  covenant,  and  the  defendant  again  demurred.    Held : 


Citations  to  the  Code  of  Virginia.  585 

The  statute  of  limitations  did  not  run  from  the  time  the  cove- 
nant was  executed  until  the  liability  of  B.  as  bail  had  ceased. 

In  the  case  of  Ball  et  als.  vs.  Johnson  {Executor)  et  als.,  8 
Grat.,  281,  decided  October,  1851,  it  was  held:  The  statute  of 
limitations  does  not  commence  to  run  against  the  owners  of  the 
remainder  in  slaves  in  favor  of  the  purchaser  of  the  life  estate 
until  the  death  of  the  life  tenant. 

See  the  case  of  Caperton  et  als.  vs.  Gregory  et  als.,  ante,  Sec- 
tion 2915. 

In  the  case  of  Layne  vs.  JVorris's  Administrators,  16  Grat., 
236,  decided  April  16,  1861,  it  was  held:  In  an  action  to  re- 
cover property,  if  the  defendant  has  been  in  adversary  posses- 
sion a  sufficient  length  of  time  to  render  the  statute  of  limita- 
tions a  bar  to  the  action,  this  possession  gives  title,  and  it  is 
not  necessary  to  plead  the  statute. 

When  a  special  verdict  finds  personal  property  in  possession 
of  a  defendant,  the  law  infers  it  to  be  adversary,  in  the  absence 
of  any  finding  to  the  contrary. 

In  the  case  of  Fant  et  als.  vs.  Fant,  17  Grat.,  11,  decided  May 
3,  1866,  it  was  held :  There  being  a  plea  of  usury  in  the  transfer 
of  the  bond  by  the  obligee  to  the  assignee,  if  he  transferred  it 
with  the  knowledge  that  there  was  such  usury,  he  was  then 
guilty  of  a  deceit,  and  the  right  of  action  arose  upon  the  transfer, 
and  if  time  has  barred  that  action,  the  assignee  is  not  therefore 
an  incompetent  witness  for  the  holder  of  the  bond  against  the 
obligee. 

In  the  case  of  Clem  vs.  Holmes,  33  Grat.,  722,  decided  Sep- 
tember, 1880,  it  was  held :  When  the  daughter  lived  away  from 
the  father's  house  at  the  time  of  the  seduction,  but  returned 
and  was  confined  there  and  nursed,  the  statute  of  limitations  will 
begin  to  run  from  that  time. 

In  the  case  of  Fjfinger  vs.  Hall,  81  Va.,  94,  decided  Novem- 
ber 19,  1885,  it  was  held,  p.  100:  Where  legacy  is  limited  upon 
a  future  event,  cause  of  action  cannot  accrue,  nor  statute  of 
limitations  begin  to  run,  nor  laches  be  imputed,  until  such  event 
occurs. 

In  the  case  of  Tomlin,  Mitchell  <&  How  vs.  Kelly,  1  Wash., 
190,  decided  at  the  spring  term  of  1793,  it  was  held :  This 
statute  applies  only  to  store  accounts  of  retail  dealers. 

In  the  case  of  Beall  vs.  Edmunson,  3  Call,  514  (2d  edition, 
446),  decided  July  7,  1790,  it  was  held:  A  new  assumpsit  for  a 
store  account  barred  by  the  six  months  act  of  limitations  binds 
the  debtor. 

In  the  case  of  V^ortham  ck  Co.  vs.  Smith  (&  Sampson,  15  Grat., 
487,  decided  January,  1860,  it  was  held :  The  act  limiting  actions 
on  store  accounts  to  two  jears  does  not  embrace  wholesale 
■dealings  of  importing  and  wholesale  merchants,  but  applies  ex- 


586  Citations  to  the  Code  of  Virginia.. 

clusively  to  the  store  account  of  retail  dealers  with  their  cus- 
tomers. 

•  A  plea  of  the  act  of  limitations  should  state  on  what  act  the 
defendant  relies,  though  if  it  appears  that  the  plaintiff  could 
not  probably  be  mistaken  as  to  the  act  relied  on,  the  appellate 
court  will  not  reverse  the  judgment  for  the  failure  of  the  plea  to 
specify  the  act. 

In  the  case  of  Moore  vs.  Mauro,  4  Rand.,  488,  decided  Novem- 
ber, 1826,  it  was  held :  The  savings  in  the  fourth  section  of  the 
act  of  limitations  apply  to  the  seventh  section  of  the  same  act, 
by  which  an  action  between  merchant  and  merchant  is  neither 
barred  by  one  year  nor  five  years. 

Under  the  eighty-sixth  section  of  the  act  concerning  proceed- 
ings in  civil  suits,  etc.,  an  account  filed  in  an  action  of  indebitatus^ 
assumpsit,  which  gives  notice  of  the  character  of  a  claim,  is  suf- 
ficient, although  it  may  be  made  up  of  various  items  of  which 
no  notice  is  given. 

In  the  case  of  Watson  vs.  Lyles  Administrator,  4  Leigh,  236, 
decided  February,  1833.  The  escheater,  who  is  defendant  to 
the  petition,  has  the  same  right  to  plead  the  act  of  limitations 
in  bar  of  the  petition  that  a  representative  of  the  debtor  would 
have  to  plead  the  statute  in  bar  of  an  action. 

In  replication  to  the  plea  of  the  statute  of  limitations  that  the 
accounts  concerned  the  trade  of  merchandise  between  merchant 
and  merchant,  no  evidence  is  adduced  to  prove  that  either 
party  was  a  merchant  during  the  time  of  the  dealings  between 
them,  nor  any  evidence  of  the  character  of  those  dealings  but- 
that  furnished  by  the  account  of  the  petitioner,  in  which  account 
the  debits  to  the  alleged  debtor,  consisting  of  two  items  for  cash 
paid  him  on  account  of  bills  of  exchange,  one  item  for  goods 
sold  him,  and  the  other  item  for  cash  advanced  to  or  for 
him,  and  there  was  a  single  credit  for  the  proceeds  of  a  bill  of 
exchange  bought  of  him.  Held :  That  the  replication  was  not 
supported  by  the  evidence,  and  the  demand  therefore  was  barred 
by  the  statute. 

In  the  case  of  Marsteller  vs.  Weaver's  Administrators,  1  Grat., 
391,  decided  February,  1845,  it  was  held :  Upon  a  bill  filed  by 
a  surviving  partner  against  the  administratrix  of  a  deceased 
partner,  the  plea  of  the  statute  of  limitations  cannot  be  sus- 
tained where  it  appears  that  there  were  good  debts  due  to  the 
firm  outstanding,  within  five  years  before  the  suit  was  brought. 
The  bill  is  filed  nine  years  after  the  dissolution  of  the  partner- 
ship and  after  the  death  of  the  other  partner.  Held :  That  the 
circumstances  of  the  case  do  not  show  such  laches  on  the  part 
of  the  plaintiff  as  to  deprive  him  of  the  right  to  have  an  account. 

In  the  case  of  Coalter  vs.  Coalter,  1  Rob.,  79  (2d  edition,  85): 
An  action  of  account  by  one  partner  against  his  co-partner,  for 


Citations  to  the  Code  of  Virginia.  587 

settlement  of  the  partnership  accounts,  must  be  commenced 
within  five  years  next  after  the  cause  of  action,  and  unless  so 
commenced,  will  be  barred  bv  the  statute  of  limitations;  for 
such  accounts  do  not  concern  the  trade  of  merchandise  between 
merchant  and  merchant,  and  therefore  are  not  embraced  by  the 
exception  to  the  statute. 

A  suit  in  equity  by  one  partner  against  his  co-partner,  for  a 
settlement  of  the  partnership  accounts,  being  a  substitute  for 
the  action  of  account,  should,  like  that  action,  be  brought  -vsdth- 
in  five  years ;  and  if  not  brought  within  that  time,  will  be  barred 
by  the  statute  of  limitations. 

In  the  case  of  Jordan  vs.  Miller  et  als.^  75  Va.,  442,  decided 
March  21,  1881,  it  was  held:  In  the  case  of  a  bill  by  a  partner 
against  his  co-pai-tners,  for  the  settlement  of  the  partnership  ac- 
counts, the  statute  of  limitations  will  not  begin  to  run  whilst 
there  are  debts  due  to  and  by  the  partnership. 

In  the  case  of  Hunter'' s  Executor  and  Herndon^s  Executor  vs. 
Spotswood,  1  Wash.,  145.  At  the  fall  term,  1792,  the  question 
of  the  application  of  the  statute  of  limitations  by  a  court  of 
equity  was  discussed,  but  the  case  was  remanded  to  the  General 
Court  solely  on  the  ground  that  there  was  no  order  of  publica- 
tion shown  in  the  record ;  so  no  decision  was  reached. 

In  the  case  of  Spotswood  vs.  Dandridge  et  als.,  4  H.  <fe  M., 
139,  decided  October  3,  1809,  it  was  held :  To  prevent  length  of 
time  from  barring  a  claim,  on  the  ground  that  the  possession  of 
the  defendant  was  fiduciary,  such  possession  must  have  been 
fiduciary  as  to  the  plaintiff,  or  those  under  whom  he  claims ;  its 
being  fiduciary  as  to  any  other  person  is  not  sufficient. 

An  executor  having  delivered  certain  slaves  to  legatees  as 
their  property  under  the  will,  a  subsequent  action  of  detinue 
against  him  for  other  slaves  which  the  testator  held  in  the  same 
right  is  not  sufficient,  though  prosecuted  to  a  judgment,  to  pre- 
vent the  act  of  limitations  from  running  both  at  law  and  in 
equity  in  favor  of  the  legatees. 

In  the  case  of  Redwood  vs.  liiddick  and  Wife,  4  Munf.,  222, 
decided  March  3,  1814,  it  was  held:  A  trustee  cannot  take  ad- 
vantage of  the  act  of  limitations  against  the  claim  of  the  cestui  que 
trust,  or  of  persons  claiming  under  him. 

In  the  case  of  Kinney's  Executors  vs.  McCluie,  1  Rand.,  284, 
decided  February,  1823,  it  was  held :  The  act  of  limitations  is  a 
good  plea  to  a  suit  in  equity  brought  to  recover  money  collected 
by  an  attorney  for  the  plaintiff,  and  not  accounted  for  by  him. 

In  the  case  of  Rarikin  vs.  Bradford  et  als.,  1  Leigh,  163,  de- 
cided March,  1829,  it  was  held:  R.  could  not  protect  himself 
under  statute  of  limitations,  because  he  bought  with  the  notice 
of  the  trust,  and  so  was  charged  with  it,  and  because  his  removal 
of  the  slaves  to  a  distant  county,  thus  keeping  owners  in  igno- 


588  Citations  to  the  Code  of  Virginia. 

ranee  where  they  were,  was  an  obstruction  to  the  assertion  of 
their  rights  of  action,  precluding  him  from  leading  the  statute. 

In  the  case  of  Sheppards  vs.  Tarpin,  3  Grat.,  373,  decided 
January,  1847,  it  was  held:  A  mere  constructive  trustee  may 
protect  his  possession  by  a  plea  of  the  statute  of  limitations. 

If  the  statute  of  limitations  will  bar  the  action  of  the  trustees 
against  third  persons  for  the  recovery  of  the  trust  property,  it 
will  equally  bar  the  action  of  the  cestui  que  trust  for  the  same 
subject-matter. 

In  the  case  of  Livesay  vs.  Helms,  14  Grat.,  441,  decided  July 
29,  1858.  A  widow  qualifies  as  administratrix  of  her  husband 
and  takes  possession  of  and  holds  certain  slaves  in  which  she 
claims  a  life  estate,  as  having  been  given  to  her  by  her  father's 
will.  She  is  afterwards  removed  from  her  office  of  administra- 
trix, but  she  continues  to  hold  the  slaves,  claiming  them  as  her 
own  for  life,  and  she  holds  them  for  more  than  five  years  after 
she  ceased  to  be  administratrix.  Held:  The  statute  of  limita- 
tions will  protect  her  against  any  claim  by  the  administrator  de 
bonis  ?ion,  and  next  of  kin  of  her  husband.  And  the  fact  that 
one  of  the  next  of  kin  had  been  a  married  Avoman  during  the 
whole  period,  will  not  prevent  the  running  of  the  statute  against 
her. 

In  the  case  of  Howe  vs.  Bentley  et  als.,  29  Grat.,  756,  759,  and 
763,  decided  January,  1878.  In  1851  R.  was  appointed  trustee 
for  B.,  a  married  woman  and  her  children,  she,  taking  for 
her  Kfe  and  they  in  remainder.  In  1885  E.  was  removed,  and 
T.  appointed  in  his  place.  Of  the  trust  property  there  was  four 
hundred  dollars  which  E.  had  lent  to  a  firm  of  which  his  brother, 
W.,  was  a  member,  and  E.  directed  W.  to  settle  for  it  with  T. 
W.  transferred  to  T.  the  bond  of  H.,  and  received  from  T.  a  re- 
ceipt for  the  four  hundred  dollars.  In  a  few  months  after,  H, 
died,  and  T.  sued  his  administrator  and  recovered  a  judgment, 
but  the  execution  upon  it  was  returned  "  no  effects."  In  1871  B., 
still  under  coverture,  by  her  next  friend  and  her  children,  sued  E. 
and  T-  for  a  settlement  of  their  accounts  as  trustees.  Held: 
Both  E.  and  T.  were  guilty  of  a  breach  of  trust  in  the  transfer, 
and  the  receipt  of  the  bond  of  H.,  and  are  Hable  for  the  amount 
to  the  cestui  que  trust. 

The  statute  of  Umitations  is  not  a  bar  to  the  claim  as  to  either 
of  the  trustees. 

Under  the  circumstances,  the  coverture  of  B.,  the  life-tenant, 
the  suspension  of  legal  proceedings  during  the  war  in  that 
count}',  the  subsequent  stay-laws,  and  the  ignorance  of  the  facts 
by  the  cestui  que  trust,  the  lapse  of  time  is  not  a  bar  to  the  re- 
covery of  the  claim. 

A  decree  against  E.  for  the  amount,  leaving  him  to  assert  any 
claim  he  may  have  against  T.,  is  not  erroneous. 


Citations  to  the  Code  of  Virginia.  589 

In  the  case  of  Ilarshherger' s  Administrator  et  als.  vs.  Alger 
et  ux.,  31  Grat.,  53,  decided  November  21,  1878,  it  was  held,  p. 
67 :  If  A.  had  a  valid  claim  to  compensation  for  her  services 
for  nursing  E.  in  her  last  illness,  it  accrued  during  the  lifetime 
of  E.,  who  died  in  1871,  and  the  statute  of  limitations  then 
begins  to  run;  and  this  suit  not  having  been  brought  till  1877, 
the  statute  is  a  bar  to  it. 

In  the  case  of  Cole's  Administrators  vs.  Ballard  et  als.,  78 
Va.,  139,  decided  November  6,  1883,  it  was  held,  p.  149 :  Bond 
executed  November  10,  1844.  payable  on  demand,  was  not  barred 
when  action  was  brought  July  17, 1877.  Under  Code,  1849,  Chap- 
ter 149,  the  twenty  years'  limitation  began  July  1,  1850,  and 
was  suspended  during  war  and  stay  periods,  from  April  17, 
1861,  to  January  1,  1869,  and  had  not  expired  when  action  was 
brought. 

Presumption  of  payment  from  lapse  of  time  has  no  referencia 
to  the  positive  bar  of  the  statute,  but  is  repellable  by  proof,  and 
in  case  at  bar  is  repelled  by  the  testimony  of  principal  obligor, 
the  endorsement  of  interest,  payments  on  the  bond,  and  other 
circumstances. 

If  a  legal  demand  which  is  barred  at  law  be  asserted  in  equity, 
equity  follows  the  law.  If  such  demand  be  one  to  which  the 
statute  applies,  but  the  lapse  of  time  be  not  such  as  to  bring  it 
within  the  statute,  laches  and  lapse  of  time  cannot  of  them- 
selves constitute  a  bar  to  the  suit. 

In  the  case  of  Harvey's  Administrators  vs.  Steptoe  {Adminis- 
trator) et  als.,  17  Grat.,  289,  decided  February  13,  1867,  it  was 
held,  p.  304 :  In  a  bill  by  a  creditor  against  the  trustee  and  ex- 
ecutor of  his  debtor  to  have  payment  of  his  debt,  and  charging 
deed  fraudulent  and  voluntary  in  part,  court  makes  a  decree 
directing  a  commissioner,  among  other  things,  to  take  an  ac- 
count of  debts  of  testator.  The  statute  of  limitations  ceased  to 
run  against  creditors  from  the  date  of  that  decree. 

In  the  case  of  Bank  of  the  Old  Donninion  vs.  Allen  et  als.,  76 
Va.,  200  and  205. 

3.  Limitations. — Last  of  notes  given  to  satisfy  the  Illinois 
judgment  was  paid  January,  1880,  yet  the  Illinois  judgment 
was  marked  satisfied  December,  1869.  General  creditors'  bill 
filed  July,  1873,  to  enforce  judgment  against  maker,  and  order 
of  account  of  debt,  etc.,  entered  October,  1873.  Held :  The 
statute  of  limitations  does  not  bar  the  claim  of  endorser  or  his 
assignee  to  be  subrogated,  and  plaintiff's  rights  in  judgment 
against  maker.  Order  of  account  entered ;  all  lien  creditors  be- 
came parties,  and  at  liberty  to  assert  their  demands  in  that  suit. 

In  the  case  of  NorvalVs  Administrators  vs.  Little  et  als.,  79 
Va.,  141,  decided  July  17,  1884,  it  was  held:  Upon  entry  of  de- 
cree for  account  in  such  suit,  time  ceases  to  run  against  all 


590  Citations  to  the  Code  op  Virginia. 

creditors  of  estate.  It  is  a  well-settled  rule  of  the  common  law, 
that  a  bond  is  presumed  to  have  been  paid  after  the  lapse  of 
twenty  years  from  its  maturity.  But  this  presumption  may  be 
repelled  by  satisfactory  evidence.  If  less  than  twenty  years 
have  elapsed,  such  presumption  arises  not,  yet  even  then  lapse 
of  time  may  be  relied  on  in  connection  with  other  circumstances 
as  evidence  of  payment. 

From  the  twenty  years  between  maturity  of  bond  and  action 
brought,  the  period  between  April  17, 1861,  and  January  1,  1869, 
must  be  eliminated  both  as  respects  the  statutory  bar  of  limita- 
tion, and  the  common  law  presumption  of  payment.  The  ob- 
ject of  the  legislature  was  to  protect  debtors  from  immediate 
enforced  collections,  without  prejudice  to  the  rights  of  creditors. 

In  the  case  of  liichmond  vs.  Ii'ojis,  121,  U.  S.  S.  C.  Reports, 
28  (referred  to  as  53-4),  decided  March  27,  1887,  it  was  held : 
The  rights,  under  the  statute  of  limitations,  of  a  creditor  who 
becomes  a  party  to  a  creditor's  bill  pending,  will  depend  upon 
the  date  of  the  filing  of  the  creditor's  bill,  and  not  upon  the 
date  of  his  becoming  a  party  to  it. 

In  the  case  of  Sweitzer  et  als.  vs.  Noffsinger  et  als.,  82  Va., 
618,  decided  November  11,  1886,  it  was  held :  Where  the  bar  is 
pleaded,  plaintiff,  to  bring  himself  within  its  savings,  must  set 
forth  the  facts  relied  on  either  by  replication  or  by  amending 

his  bm. 

New  promise  to  remove  the  bar  must  be  determinate  and  un- 
equivocal, and  by  one  against  whom  the  right  to  maintain  an 
action  has  accrued;  acknowledgment  from  which  promise  may 
be  implied  must  be  unqualified. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  732. 

In  the  case  of  Carr's  Administrators  vs.  Chapman  s  Legatees, 
5  Leigh,  164,  decided  March,  1834.  Bill  by  the  legatees  of  A. 
against  the  executor  and  legatees  of  B.,  who  is  executor  of  A.,  for 
an  account  of  B.'s  administration  of  A.'s  estate.  B.'s  executor 
being  himself  one  of  A.'s  legatees,  and  so  a  party  in  interest 
with  plaintiffs,  it  appears  that  no  account  of  B.'s  administration 
of  A.'s  estate  has  ever  in  fact  been  settled ;  but  this  bill  is  filed 
twenty-eight  years  after  B.'s  death,  and  from  twelve  to  twenty 
years  after  the  youngest  of  the  plaintiffs  attained  full  age,  and 
the  accounts  called  for  would  involve  very  ancient  and  compli- 
cated transactions.  Held :  The  great  lapse  of  time  is  a  suffi- 
cient objection  to  the  relief  prayed  by  the  bill  against  the  repre- 
sentatives of  the  first  executor,  especially  under  circumstances 
showing  that  nothing  was  probably  due,  and  that  from  loss  of 
papers  and  evidence,  the  accounts  cannot  be  now  fairly  settled. 

In  the  case  of  Hayes  et  als.  vs.  Goode  et  als.,  7  Leigh,  452, 
decided  April,  1836.  A  testator  died  in  1782,  and  his  will  was 
proved  and  the  executors  qualified  in  that  year.     The  chief  act- 


Citations  to  the  Code  of  Virginia.  591 

ing  executor  died  in  1792,  and  in  the  following  year  the  account 
of  that  executor  was  settled,  and  the  balance  thereby  appearing 
due  was  paid  over  to  the  surviving  executor.  In  December, 
1797,  a  suit  was  brought  by  legatees  against  the  surviving  exec- 
utor and  the  representative  of  the  deceased  executor,  which 
suit  was  discontinued  in  October,  1806  for  want  of  prosecution. 
The  surviving  executor  died  in  the  latter  part  of  1808,  or  begin- 
ning of  1809,  and  in  April,  1809,  a  second  suit  was  brought, 
making  defendants  thereto  the  representatives  of  both  executors, 
the  surviving  sureties  of  the  executors,  and  the  representatives 
of  those  sureties  who  had  died.  New  parties  were  frequently 
made,  numerous  accounts  were  ordered,  and  from  remissness  of 
the  plaintiffs  and  other  causes,  the  case  lingered  for  a  long  time. 
In  October,  1827,  the  chancellor  decreed  that  the  bill  be  dis- 
missed on  appeal  from  this  decree.  Held  :  The  great  lapse  of 
time  before  the  suit  was  commenced,  together  with  the  remiss- 
ness in  prosecuting  it  afterwards,  was  a  sufficient  reason  for  re- 
fusing to  entertain  the  bill  against  representatives  and  sureties, 
especially  as  the  circumstances  appearing  in  the  case  tended  to 
show  that  the  debts  due  from  the  testator  were  sufficient  to  ex- 
haust his  slaves  and  personal  assets. 

In  the  case  of  Caruther's  Administrators  vs.  The  Trustees  of 
Lexington,  12  Leigh,  610,  decided  August,  1841.  A  lottery  is 
authorized  in  1802,  for  the  relief  of  sufferers  by  fire  in  Lexing- 
ton, but  commissioners,  with  consent  of  greater  part  of  sufferers, 
determine  to  apply  the  proceeds  of  the  lottery  to  the  construc- 
tion of  roads  through  the  town.  About  two  thousand  dollars  are 
obtained  by  the  lottery,  which  is  drawn  in  1805.  By  application 
of  funds  derived  from  lottery  and  of  private  subscriptions  and 
of  donation  from  the  legislature,  the  roads  are  completed  in 
1808-'9;  J.  C.  was  the  treasurer  and  W.  C.  secretary  of  the 
lottery,  but  AV.  C.  was  the  chief  manager,  and  actually  received 
and  disbursed  the  greater  part  of  the  funds;  W.  C.  died  in  1817 ; 
in  1827,  by  act  of  Assembly,  the  balance  in  the  hands  of  the 
treasurer  of  the  lottery  is  vested  in  the  trustees  of  Lexington, 
the  treasurer  or  his  representative  is  required  to  settle  with 
them,  and  to  pay  them  the  balance,  and  in  case  of  failure  they 
are  authorized  to  recover  it  by  action  of  debt;  and  in  1830 
trustees  bring  bill  in  chancery  against  the  administrators  of  W.  C. 
for  an  account  of  the  lottery  fund.  Held :  Equity  will  not  enter- 
tain a  bill  for  an  account  of  such  stale  transactions,  when  all 
parties  to  the  transactions,  who  could  explain  them,  are  dead, 
and  bill  dismissed. 

In  the  case  of  Smith  et  als.  vs.  Thompson  et  als.,  7  Grat.,  112, 
decided  May  14,  1850,  it  was  held :  A  party  who  comes  into  a 
court  of  equity  to  enforce  an  equitable  claim,  must  do  so  within 
a  reasonable  time,  and  he  must  not  delay  until  by  his  negligence 


592  Citations  to  the  Code  op  Virginia. 

there  can  no  longer  be  a  safe  determination  of  the  controversy^ 
and  his  adversary  is  exposed  to  the  danger  of  injustice  from  loss 
of  information  and  evidence,  and  means  of  recourse  against  others, 
occasioned  by  deaths,  insolvencies,  and  other  untoward  circum- 
stances. 

The  application  of  this  equitable  doctrine  is  for  the  sound 
discretion  of  the  court,  and  does  not  require  the  conviction  of 
the  court  against  the  original  justice  of  the  claim  or  of  any 
other  specij&c  ground  of  defence,  but  its  belief  that,  under  the 
circumstances  of  the  case,  it  is  too  late  to  ascertain  the  merits 
of  the  controversy. 

In  the  case  of  Wesfs  Admiiiistrators  vs.  Thornton,  7  Grat., 
177,  decided  December  7,  1850.  The  bill  was  dismissed  on  the 
ground  of  lapse  of  time  and  the  laches  of  the  plaintiff,  and  the 
danger  of  doing  injustice  by  attempting  to  settle  the  accounts 
between  the  parties. 

In  the  case  of  TazewelVs  Executor  vs.  Whittle's  A  dministra- 
tors,  13  Grat.,  329,  decided  May  23,  1856,  it  was  held :  Though 
a  creditor's  debt  is  evidenced  by  deed,  yet  where  there  has  been 
gross  laches  in  its  prosecution,  and  the  account  cannot  be  settled 
without  injustice  to  the  estate  of  the  deceased  debtor,  a  court 
of  equity  will  not  give  the  creditor  relief. 

In  the  case  of  TazewelVs  Executor  vs.  Saunders's  Executor  et 
als.,  13  Grat.,  354,  decided  May  23,  1856,  it  was  held:  Laches 
in  the  assertion  or  prosecution  of  a  claim  is  not  always  enough 
to  defeat  it.  The  laches  must  be  such  as  to  afford  a  reasonable 
presumption  of  the  satisfaction  or  abandonment  of  the  claim; 
or  such  as  to  prevent  a  proper  defence  by  reason  of  the  death 
of  parties,  loss  of  evidence  or  otherwise. 

The  reference  to  17  Grat.,  544,  is  the  case  of  Robertson  et  als. 
vs.  Head's  Administrators  et  als.,  in  which  there  is  an  extended 
decision  on  the  subject  of  the  effect  of  laches,  too  long  and  un- 
certain, however,  for  use  here. 

In  the  case  of  Bar  gamin  et  als.  vs.  Clarke  et  als.,  20  Grat., 
544  and  553,  decided  March,  1871.  In  1819  L.  conveys  a  lot 
of  land  to  C,  in  trust,  to  pay  certain  debts  which  are  due  upon 
executions  in  the  hands  of  the  sheriff,  and  the  other  is  due  to 
the  father  of  C.  Ten  years  afterwards  the  father  dies,  and 
makes  C.  his  executor  and  one  of  his  residuary  legatees.  The 
lot  is  never  sold  under  the  deed  of  L.,  but  in  1839  C.  takes 
possession  of  it,  and  some  years  afterwards  leases  it  in  his  own 
name  to  R.  for  eight  years.  In  1854  W.,  claiming  it  under 
another  title,  sues  R.  for  it,  and  C.  being  then  dead,  his  heirs 
make  themselves  parties  and  defend  the  suit,  and  obtain  a  final 
judgment  in  1867.  Then  the  heirs  of  L.  sue  the  heirs  of  C.  for 
the  lot,  alleging  that  C.  took  and  held  possession  as  trustee 
under  the  deed,  and  his  heirs  held  under  the  trust,  and  defended 


Citations  to  the  Code  of  Virginia.  59o 

the  action  under  that  title.  The  heirs  of  C.  deny  this  claim  that 
C.  took  possession  for  himself,  and  he  and  they  have  so  held  for 
twenty-eight  years,  and  they  defended  the  suit  for  themselves. 
Held :  The  heirs  of  L.  are  barred. 

In  the  case  of  Uannson  et  als.  vs.  Gibson  et  als.,  23  Grat.,  212, 
decided  March,  1873,  it  was  held :  The  decided  cases  do  not  fix 
any  period  as  limiting  the  demand  for  an  account.  If,  from  the 
delay  which  has  taken  place,  it  is  manifest  that  no  correct  ac- 
count can  be  rendered,  that  any  conclusion  to  which  the  court 
inay  arrive  at  must,  at  best,  be  conjectural,  and  that  the  original 
transactions  have  become  so  obscured  by  time  and  loss  of  the 
evidence  and  the  death  of  parties  as  to  render  it  difficult  to  da 
justice,  the  court  will  not  relieve  the  plaintiff.  If,  under  the 
circumstances  of  the  case,  it  is  too  late  to  ascertain  the  merits 
of  the  controversy,  the  court  will  not  interfere,  whatever  may 
have  been  the  original  justice  of  the  claim. 

Though  a  delay  of  fourteen  years  after  a  right  has  accrued 
does  not  create  a  statutory  bar,  it  will,  in  connection  with  other 
circumstances,  be  very  persuasive  against  the  justice  of  the 
claim.     Relief  refused  in  this  case. 

In  the  case  of  Carter  (Trustee^  etc.,)  vs.  McArtor  et  als.,  28 
Grat.,  356,  decided  March,  1877.  In  March,  1844,  by  an  agree- 
ment in  writing,  D.  sells  a  tract  of  land  to  M.,  for  which  M.  is 
to  transfer  to  D.  bonds  of  K.,  secured  by  a  deed  of  trust  on  real 
estate,  and  gives  his  bond  for  the  balance  of  the  purchase- 
money,  payable  in  ten  years  with  interest ;  and  M.  is  to  convey 
the  land  to  secure  the  payment  of  the  bonds  of  K.  and  the 
balance  of  the  purchase-money.  In  December,  1844,  M.  con- 
veys the  land  in  trust  to  secure  to  D.  a  bond  of  six  thousand 
dollars,  payable  in  ten  years  with  interest,  but  no  reference  is 
made  in  the  deed  to  the  bonds  of  K.  The  real  estate  on  which 
the  bonds  of  K.  are  secured  diminishes  in  value,  and  when  sold 
by  D.  in  1852  briugs  only  one-third  of  the  amount  due  on  the 
bonds.  In  1858  C.,  trustee  claiming  under  D.,  files  his  bill 
against  M.  and  others,  claiming  that  by  mistake  the  deed  of 
trust  executed  by  M.  omitted  to  secure  the  K.  bonds.  A  wit- 
ness who  drew  the  agreement,  but  was  not  present  when  the 
deed  was  drawn  and  executed,  says  he,  in  1845,  called  attention 
to  the  mistake,  and  was  told  the  agreement  was  sufficient  to  bind 
the  land.  Held :  The  parties  having  known  as  early  as  1852 
that  the  real  estate  on  which  the  K.  bonds  was  secured  was  not 
sufficient  to  secure  them,  and  they  having  delayed  until  1858 
before  they  filed  their  bill,  they  are  precluded  by  their  laches 
from  any  relief. 

The  case  of  Stampers' 8  Adinhiistrator  vs.  Oarnett,  31  Grat., 
550,  decided  March  13,  1879,  was  a  case  in  which,  from  the 
lapse  of  time,  the  death  of  all  the  parties  cognizant  of  the  trans- 
38 


694  Citations  to  the  Code  of  Virginia. 

actions,  the  destruction  of  the  records  of  the  county,  and  loss 
of  papers,  it  was  held  tliat  an  account  of  administration  of  an 
estate  could  not  be  settled  without  great  danger  of  injustice  to 
the  deceased  administrator,  and  was  therefore  refused. 

In  the  case  of  Hatcher  et  als.  vs.  Hall  et  als.,  77  Va.,  573, 
decided  July  10, 1883,  it  was  held :  It  is  an  inherent  doctrine  of 
courts  of  equity  to  refuse  relief  where  there  has  been  gross 
laches  in  prosecuting  rights,  or  long  and  unreasonable  acqui- 
esence  in  the  assertion  of  adverse  rights.  This  doctrine,  founded 
on  considerations  of  natural  justice  and  public  policy,  is  always 
firmly  enforced,  especially  where  the  immediate  parties  to  the 
transactions  are  dead. 

In  the  case  of  TJpdik^s  Administrators  vs.  Lane,  78  Va.,  132, 
decided  December  6, 1883,  it  was  held :  Bond  payable  October, 
1847,  not  when  action  commenced  in  1876.  By  Chapter  149, 
Code  of  1849,  the  twenty  years  limitation  on  bonds  executed 
prior  to  July  1,  1850,  began  on  that  day,  and  it  was  suspended 
during  the  period  from  April  17,  1861,  to  January  1,  1869. 

The  common  law  presumption  of  payment  applies  only  to 
cases  where  twenty  years  have  elapsed  after  the  right  of  action 
accrued.  This  is,  however,  repellable  by  express  admissions 
within  twenty  years,  by  payment  of  interest  or  part  of  the  prin- 
cipal, obligor's  inability  to  pay,  suspension  of  collection  by  stay- 
law  or  war,  and  even  by  near  relationship  of  the  parties. 

In  the  case  of  JSfelson's  Administrators  vs.  Kownslar,  79  Va., 
468,  decided  October  6,  1884,  it  was  held :  Record  discloses 
circumstances  under  which  it  is  held  improper  to  rehear  a 
decree  confirming  a  settlement  of  executorial  accounts  after  the 
lapse  of  thirteen  years,  the  death  of  the  principal  parties,  the 
trustees  removal  west,  and  the  loss  of  all  the  vouchers,  proofs, 
and  evidence. 

In  the  case  of  MorrisorCs  Executors  et  als.  vs.  Householder's 
Administrators  et  als.,  79  Va.,  627,  decided  December  4,  1884, 
it  was  held :  In  computing  time  within  which  suits  on  demands 
against  fiduciaries  may  be  brought,  the  stay  period  must  be 
eliminated  as  in  other  cases. 

In  the  case  of  Wissler  vs.  Craig's  Administrators^  80  Va.,  22, 
decided  January  8,  1885,  it  was  held :  Laches  is  neglect  to  do 
something  one  ought  to  do.  Mere  lapse  of  time  unaccompanied 
by  circumstances  affording  evidence  of  a  presumption  that  the 
right  has  been  abandoned,  is  not  considered  "laches." 

Where,  from  delay,  no  correct  amount  can  be  taken,  and  any 
conclusion  the  court  may  arrive  at  must,  at  best  be  conjectural, 
and  the  original  transactions  have  become  so  obscured  by  lapse 
of  time,  loss  of  evidence,  and  death  of  parties,  as  to  render  it 
difficult  to  do  justice,  the  case  will  be  considered  as  a  case  of 
laches,  and  the  court  will  not  relieve  the  plaintiff. 


Citations  to  the  Code  of  Virginia.  595 

In  the  case  of  Morgan  vs.  Fisher's  Administrators,  82  Va., 
417,  decided  September,  23,  1886.  Executrix  paid,  in  1850,  the 
purchase-money  on  the  land  purchased  in  1840  by  her  testator, 
and  took  conveyance  to  herself  "as  executrix."  In  1854  she 
-conveyed  the  land  to  a  trustee  (reciting  in  the  deed  that  although 
she  was  described  in  the  deed  to  herself  "as  executrix,"  she  had 
paid  for  it  with  her  own  money,  and  it  was  hers)  in  trust  to  secure 
six  bonds,  payable  to  her  son,  by  whom  they  were  assigned  to 
Fisher.  After  her  death  Fisher's  administrators,  in  1881,  insti- 
tuted suit  to  enforce  the  trust  deed  to  satisfy  the  said  bonds, 
claiming  that  if  the  land  were  not  her  property,  she  was  at  least 
subrogated  to  the  vendor's  lien  thereon  as  security  for  the  money 
advanced  by  her,  and  that  this  lien  passed  by  the  trust  deed. 
Held :  Fisher's  rights  had  been  lost  by  his  laches. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  692. 

In  the  case  of  Turner's  Administrators  vs.  Dillard^s  Executors, 
82  Va.,  536,  decided  November  11,  1886.  L.  quaUfied  as  exec- 
utor of  his  father's  estate  in  1841.  Suit  for  settlement  was  in- 
stituted thirty-seven  years  afterwards.  Both  plaintiff  and  de- 
fendant were  old  and  died  within  a  few  months.  Estate  was 
large.  Much  money  had  been  paid  out  to  legatees.  L.  had 
actually  donated  to  plaintiff  a  farm  worth  double  her  claims. 
Witnesses  were  dead;  vouchers  destroyed  by  public  enemy  dur- 
ing civil  war,  and  a  correct  account  had  become  impossible, 
whilst  the  delay  to  demand  settlement  sooner  was  unexplained. 
Held :  The  court  will  leave  the  parties  where  they  contentedly 
rested  so  long  and  will  dismiss  the  bill. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  117. 

In  the  case  oi  Backhouse  {Administratrix)  vs.  Jones  {Executor), 
5  Call,  462,  decided  April,  1805,  it  was  held:  The  defendant 
cannot  plead  the  act  of  limitations  upon  setting  aside  the  office 
judgment  after  the  next  term  unless  good  cause  is  shown. 

In  the  case  of  Brockenbrough  vs.  Hackley,  6  Call,  51,  de- 
cided April,  1806,  it  was  held:  If  there  be  several  partners,  and 
one  of  them,  after  the  co-parcenry  is  dissolved,  assumes  a  part- 
nership debt,  but  afterwards  pleads  the  act  of  limitations  jointly 
with  the  other  partners,  the  assumpsit  may  be  given  in  evidence, 
for  the  plea  of  non  assumpsit  within  five  years  admits  that  the 
defendants  did  once  assume. 

In  the  case  of  Tomliris  Administrators  vs.  Hold's  Adminis- 
trators, 1  Va.  (Gilmer),  1,  decided  April  10,  1820,  it  was  held: 
The  plea  of  the  statute  of  limitations  is  an  issuable  plea,  and 
sometimes  an  honest  plea.  Another  plea  may  be  added  to  the 
general  issue  under  circumstances. 

Presumption  of  payment  arising  from  the  staleness  of  the  de- 
mand will  excuse  delay  in  pleading  the  statute  of  limitations, 
especially  in  favor  of  an  executor  or  administrator. 


596  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Martin  vs.  Anderson,  6  Rand.,  19,  decided  Au- 
gust 21,  1827,  it  was  held:  A  plea  of  the  statute  of  limitations 
ought  not  to  be  received  after  issue  joined  on  another  plea,  un- 
less some  good  reason  be  assigned  why  the  plea  of  the  statute 
of  limitations  was  not  sooner  tendered. 

In  the  case  of  Hickman  vs.  Stout,  2  Leigh,  6,  decided  Feb- 
ruary, 1830,  it  was  held :  The  statute  of  limitations  cannot  be 
insisted  on  in  equity  without  being  pleaded,  or  in  some  form 
relied  on  as  a  defence  in  the  pleadings. 

In  the  case  of  Calvert  vs.  MilhteadJs  Administratrix,  5  Leigh, 
88,  it  was  held :  Upon  a  bill  in  chancery  for  slaves  the  statute 
of  limitations  cannot  avail  the  defendant  unless  it  be  pleaded. 

In  the  case  of  ClojptovLS  Administrator  vs.  Clarke's  Executor, 
7  Leigh,  325,  decided  March,  1836.  In  assumpsit  defendant 
pleads  the  general  issue  at  September  term,  1818 ;  his  death  is 
suggested  in  October,  1823,  and  the  cause  is  revived  at  March 
term,  1824,  against  his  administrator,  who  obtains  leave  at  Octo- 
ber term,  1825,  to  plead  the  statute  of  limitations ;  but  by  inad- 
vertence, as  it  seems,  the  plea  is  not  then  filed ;  at  the  March 
term,  1826,  the  cause  is  called  for  trial,  and  the  administrator 
asks  leave  to  put  in  the  plea.     Held :  It  cannot  now  be  received. 

In  the  case  of  Tunstall  vs.  Pollard's  Achninistrator,  11  Leigh, 
1,  decided  March,  1840,  it  was  held:  The  statute  is  a  bar  on 
such  judgments  against  an  administrator  of  the  deceased  debtor, 
though  no  assets  of  the  debtor's  estate  came  to  the  hands  of  the 
representative  within  five  years  of  his  qualification ;  and  the  ad- 
ministrator is  bound  to  plead  the  statute  to  actions  of  the  judg- 
ment-creditors in  favor  of  other  creditors  prosecuting  claims  to 
which  the  limitation  does  not  apply,  and  it  seems  the  represen- 
tative is  bound  to  plead  that  statute,  in  all  cases  to  which  it  ap- 
plies, to  protect  the  decedent's  estate  for  the  benefit  of  other 
creditors,  or  of  legatees  or  distributees  of  the  decedent. 

In  the  case  of  Herrington  vs.  Harkinis  Administrators,  1 
Rob.,  591  (2d  edition,  624) :  Where  an  action  of  debt  is  brought 
on  a  judgment  after  ten  years  from  the  date  thereof,  and  the 
defendant  wishes  to  avail  himself  of  the  statute  of  limitations, 
it  is  necessary  that  he  should  do  so  by  plea.  A  demurrer  to 
the  declaration  is  not  the  proper  mode  to  take  advantage  of  the 
statute. 

In  the  case  of  Trimyer  vs.  Pollard,  5  Grat.,  460,  decided  Jan- 
uary, 1849,  it  was  held:  Where  a  defendant  does  not  file  a  plea 
of  set-off,  but  files  his  account  and  gives  notice  of  set-off,  the 
plaintiff  cannot  apply  the  statute  of  limitations,  and  he  is  there- 
fore at  liberty  to  rely  upon  it  in  evidence.  If  the  set-off  accrued 
before  the  action  was  brought,  the  period  of  limitation  is  five 
years  before  the  commencement  of  the  action.  If  the  set-off 
accrued  after   the  action  was   brought,  the  period  of   Hmita- 


Citations  to  the  Code  of  Virginia.  597 

tion  is  five  years  before  the  plea  pleaded  on  account  of  offsets 
filed. 

For  the  reference  to  13  Grat.,  329,  see  supra,  this  section. 

For  the  reference  to  16  Grat.,  236,  see  supra,  this  section. 

The  references  to  32  Grat.,  66-72,  are  errors. 

In  the  case  of  Smith  vs.  Sutchiiison  et  als.,  78  Va.,  683,  de- 
cided March  13,  1884,  it  was  held :  The  defence  of  the  statute 
of  limitations  is  a  personal  privilege,  and  to  be  made  available 
must  be  pleaded  by  the  defendants.  The  court  has  no  power 
to  interpose  the  plea  ex  mero  motio. 

In  the  case  of  Virginia  Fire  and  Marine  Insurance  Company 
vs.  Aiken,  82  Va.,  424,  decided  September  30, 1886,  it  was  held: 
Condition  in  policy  that  suit  shall  not  be  brought  except  within 
a  period  less  than  that  fixed  by  the  statute  of  limitations  is  vaUd. 
This  is  the  case  cited  from  10  Va.  Law  Journal,  714. 

In  the  case  of  Gover  vs.  Chamberlain,  83  Va.,  286,  decided 
April,  1887,  it  was  held:  Writing,  not  mentioning  "seal"  in  its 
body,  but  having  scroll  attached  to  the  signature,  is  only  a 
simple  contract.  The  bar  of  five  years  applies,  and  it  can  be 
taken  out  of  its  operation,  not  by  payment  or  promise  to  settle, 
but  only  by  promise  in  writing  to  pay  it,  or  an  acknowledg- 
ment in  writing,  such  that  a  promise  to  pay  it  must  be  inferred 
therefrom. 

In  the  case  of  Virginia  Fire  and  Marine  Insurance  Company 
vs.  ^Vells  {Trustee),  83  Va.,  736,  decided  September,  1887,  it  was 
held:  Stipulation  in  policy  limiting  the  period  within  which 
suit  thereon  should  be  brought  to  a  period  shorter  than  the 
period  prescribed  in  the  statute  of  limitations  for  the  institution 
thereof  is  valid. 

In  the  case  of  Leith  (Administrator)  vs.  Carter's  Administra- 
tor et  als.,  83  Va.,  889,  decided  November,  1887,  it  was  held: 
Administrator  may  interpose  bar  of  limitations  by  plea  or  an- 
swer, or  by  exceptions  to  report. 

In  the  case  of  Radford  vs.  Fowlkes,  85  Va.,  820,  decided  Feb- 
ruary 21,  1889,  it  was  held:  When  before  the  bar  of  the  statute 
of  limitations  has  attached  to  accounts  current  they  are  pre- 
sented to  debtor,  and  are  converted  into  accounts  stated,  the 
statute  of  limitations  begins  to  run  against  them  only  from  the 
date  of  such  conversion. 

In  the  case  of  Hamilton  vs.  Glenn^  85  Va.,  901,  decided  March 
14,  1889,  it  was  held :  Where  corporation's  property,  including 
unpaid  subscriptions,  is  conveyed  to  secure  its  debts  which, 
though  barred  by  the  statute  of  limitations,  are  not  extinguished, 
equity  will  aid  in  enforcing  their  payment. 

In  the  case  of  Gibson  and  Wife  vs.  Green's  Administrator  et 
als.,  89  Va.,  524,  decided  January  5,  1893,  it  was  held :  Statute 
of  limitations  cannot  be  availed  of  unless  pleaded. 


598  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Cottrell  vs.  Watkins  et  als.,  89  Va.,  801,  decided 
March  30,  1893,  it  was  held :  Lapse  of  less  than  two  and  a  half 
years  after  a  sale  under  a  deed  of  trust,  procured  through  the 
fraudulent  representations  of  one  representing  himself  as  enti- 
tled to  the  benefit  of  its  provisions,  will  not  bar  a  suit  to  set 
aside  the  sale  when  the  suit  is  not  barred  by  the  statute  of  limi- 
tations. 

Section  2921. 

In  the  case  of  Franklin's  Administrator  vs.  Depriest,  13  Grat., 
257,  decided  March  10,  1856.  Testator  dies  intestate  as  to  one 
slave  who  is  sold  by  the  executor  and  purchased  by  himself. 
Afterwards  the  executor  having  failed  to  settle  his  accounts,  a 
suit  in  equity  is  brought  against  him,  in  which  there  is  a  claim 
for  the  slave  and  his  heirs,  and  for  a  settlement  of  his  accounts  y 
and  in  this  suit  the  sale  to  the  executors  is  set  aside,  and  he  is 
required  to  account  for  the  heirs  of  the  slave,  and  in  1850  there 
is  a  decree  against  the  executor  in  favor  of  the  parties  interested 
in  the  estate  for  their  respective  shares  of  these  heirs. 

In  an  action  against  a  surety  of  the  executor,  founded  on  this 
decree,  held :  The  statute  of  limitations  in  favor  of  securities  of 
fiduciaries  did  not  begin  to  run  in  favor  of  the  surety  until  the 
decree  of  1850,  and  this,  though  the  surety  was  not  a  party  to 
the  suit  in  equity. 

In  the  case  of  Tilson  vs.  Davis  {Administrato?')  et  als.,  32 
Grat.,  92,  decided  July,  1879.  G.  died  early  in  1849,  leaving  a 
widow,  T.,  and  three  infant  children,  and  in  March,  1849,  D. 
qualified  as  his  administrator.  In  March,  1851,  D.  settled  his 
account,  and  had  for  distribution  $5,090.63 ;  and  having  qualified 
as  guardian  of  the  children,  he  retained  in  his  possession  two- 
thirds  of  this  sum  as  their  guardian.  He  had  in  1850  executed 
his  bond  for  the  balance  due  to  T.  as  his  widow.  There  is  some 
uncertainty  as  to  the  provisions  of  the  bond,  whether  given  to 
her  as  a  payment  of  the  third  due  to  her  as  widow,  or  as  a  mere 
acknowledgment  of  what  was  due  to  her ;  and  whether  it  pro- 
vided only  for  the  payment  to  her  of  the  interest  during  her 
life,  and  then  of  the  principal  to  her  children.  In  April,  1875, 
T.  instituted  a  suit  in  equity  against  the  administrators  and 
sureties  of  D.  to  recover  the  amount  of  her  interest  in  the  estate 
of  her  husband,  G.,  and  the  sureties  answered,  insisting  that  T. 
had  accepted  the  bond  of  D.  in  satisfaction  of  her  claim,  and 
pleading  the  statute  of  limitations.  Held :  If  the  bond  was 
given  so  that  T.  was  only  entitled  to  the  interest  during  her 
life,  then  it  was  to  go  to  the  children,  it  was  a  novation  of  the 
debt  due  by  D.  as  administrator,  and  his  sureties  were  not  bound 
for  the  claim. 

That  D.  having  settled  his  administration  accounts  finally  in 
1851,  and  given  the  bond  to  T.,  if  it  was  intended  merely  as  an 


Citations  to  the  Code  of  Virginia.  599 

acknowledgment  that  that  much  was  due  to  her,  it  was  a  settle- 
ment to  the  amount  of  the  bond,  and  from  the  moment  of  its 
execution  and  delivery  to  T.  right  of  action  accrued  thereon, 
and  more  than  ten  years  have  elapsed  before  she  brought  her 
suit,  his  sureties  are  discharged  from  their  liabilities  by  the 
statute  of  limitations. 

In  the  case  of  Leake  s  Executors  et  als.  vs.  Leake  et  als.,  75  Va., 
792,  decided  November,  1881,  it  was  held :  The  statute.  Code 
1873,  Chapter  146,  Section  9,  declares  that  the  action  upon  the 
bond  of  an  executor,  or  an  administrator,  may  be  brought  with- 
in ten  years  after  the  right  of  action  accrues,  and  there  is  no 
other  limitation  applicable  to  the  sureties  upon  the  official 
bond. 

In  the  case  of  Pearle's  Administrator  vs.  Thtirmund,  11  Va., 
753,  decided  October  4,  1883,  it  was  held:  Guardian  de  facto  is 
liable  to  his  wards  for  rents  and  profits  received  by  him  during 
his  possession  of  the  corpus  of  their  estate. 

Father  acting  as  such  guardian,  and  liable  for  such  rents  and 
profits,  is  entitled  to  set-off  against  same,  the  amount  advanced 
his  female  ward's  husband  to  assist  him  in  business,  and  it  is 
inequitable  to  settle  on  the  wife  the  whole  she  is  entitled  to, 
without  deducting  the  amount  so  advanced.  So,  guardian  being 
a  fiduciary,  the  statute  of  limitations  runs  not  in  his  favor  against 
his  ward's  claims,  nor  does  any  presumption  arise  from  lapse  of 
time,  where  the  claim  is  clearly  established. 

In  the  case  of  Sharpes  Executor  vs.  Rochwood  et  als.,  78  Va., 
24,  decided  November  15,  1883,  it  was  held:  Action  on  fidu- 
ciary's bond  is  barred  only  after  ten  years  from  accruing  of 
cause  of  action,  that  is,  from  return-day  of  execution  against 
fiduciary,  or  from  time  of  right  to  require  payment  or  delivery 
from  fiduciary. 

Where  suit  is  brought  and  decided  in  1858,  but  retained  on 
docket  till  1867,  because  there  was  no  hand  to  receive  the  funds, 
when  it  is  dismissed  with  leave  to  reinstate  it  on  motion  of  any 
person  interested,  and  it  is  reinstated  in  1878,  and  a  supple- 
mentary suit  is  breught,  the  latter  is  deemed  a  continuation  of 
the  former,  quoad  questions  arising  under  the  statute  of  limita- 
tions. 

In  the  case  of  McCormick'' s  Executors  vs.  Wrights  Executors, 
79  Va.,  524,  decided  October  7,  1884,  it  was  held:  As  to  fidu- 
ciaries themselves,  there  is  no  limitation  except  what  results 
from  staleness  of  demand  or  presumption  of  payment,  other- 
wise as  to  their  sureties.  Action  against  sureties  on  fiduciary's 
bond  may  be  brought  within  ten  years  after  accmal  of  right  of 
action,  that  is,  from  return  day  of  execution  against  fiduciaries  or 
from  time  of  right  to  require  payment  or  delivery  from  fiduciary. 

In  the  case  of  Moi^risons  Executors  vs.  Householder's  Admin- 


600  Citations  to  the  Code  of  Virginia. 

istrators  et  als.,  79  Va.,  627,  decided  December  4,  1884,  it  was 
held :  In  computing  time  within  which  suits  on  demands  against 
fiduciaries  may  be  l3rought,  the  stay  period  must  be  eliminated 
as  in  other  cases. 

In  the  case  of  Ashhy  vs.  BelVs  Administrators^  80  Va.,  811, 
decided  October  21,  1885.  In  1865  E.  sued  out  distress  war- 
rant against  estate  of  J.,  deceased,  which  had  been  committed 
to  sheriff  as  administrator,  who  wasted  it.  Warrant  was  placed 
in  hands  of  sheriff's  deputy  to  levy.  It  was  never  levied,  but 
was  returned  to,  and  remained  effete  in  clerk's  office  until  1880, 
when  E.'s  administrator  brought  chancery  suit  against  sheriff- 
administrator  and  his  two  sureties,  alleging  the  devastavit,  and 
asking  relief.  Against  principal  and  all  his  sureties,  except  A., 
the  bill  was  taken  for  confessed.  A.  answered  and  pleaded  statute 
of  limitations.  Held :  The  claim  of  E.'s  administrator  for  the 
devastavit  was  debarred  as  against  sheriff-administrator's  surety, 
though  not  against  himself,  when  the  suit  was  brought  in  1880. 

The  suit  being  on  the  joint  obligation  of  all  the  sureties,  the 
defence  by  A.  not  being  purely  personal  to  him,  enured  to  the 
benefit  of  all,  and  no  decree  can  be  entered  against  any. 

In  the  case  of  Morrison  et  als.  vs.  Lavell,  81  Va,,  519,  decided 
March  11,  1886.  Supports  the  case  of  Leake's  Executors  vs. 
Leake  et  als.,  cited  supra,  this  Section. 

Section  2922. 

In  the  case  of  Butcher  vs.  Hixton,  4  Leigh,  519,  decided  May, 
1833,  it  was  held :  If  in  any  case  of  an.  action  of  debt  on  simple 
contract  the  plaintiff  would  rely  on  a  subsequent  acknowledg- 
ment to  take  the  case  out  of  the  statute  of  limitations,  it  seems 
he  must  count  on  such  subsequent  acknowledgment  in  his  de- 
claration, otherwise  in  an  action  of  assumpsit. 

In  the  case  of  Aylett  {Executor)  vs.  Rohinson,  9  Leigh,  45, 
decided  November,  1837.  In  assumpsit  against  an  executor  for 
a  debt  of  his  testator  on  an  open  account,  all  the  items  of  which 
appear  to  have  been  due  more  than  five  years  before  testator's 
death,  plaintiff  proves  that  within  five  years  after  the  date  of  his 
account  he  applied  to  the  testator  to  settle  the  same,  and  testator 
said,  "  I  am  too  unwell  to  do  business  now,  but  when  I  am  bet- 
ter I  will  settle  your  account."  Held:  These  words  import  no 
such  promise  to  pay,  or  acknowledgment  of  the  debt,  as  will  take 
the  case  out  of  the  statute  of  limitations,  requiring  the  court,  in 
such  cases,  to  expunge  from  such  account  every  item  which 
shall  appear  to  have  been  due  more  than  five  years  before  the 
testator's  death.  Such  a  promise  to  settle  would  not  amount  to 
a  promise  to  pay,  or  acknowledgment  of  debt,  that  would  take 
the  case  out  of  the  general  statute  of  limitations  in  regard  to 
such  actions. 


I 


Citations  to  the  Code  of  Vikginia.  601 

.  In  the  case  of  Sutton  ys.  Burrtiss,  9  Leigh,  381,  decided  April, 
1838.  On  a  plea  of  non-assumpsit  within  five  years,  it  was 
proved  that  within  five  years  the  defendant  acknowledged  the 
items  in  the  plaintiff's  account  to  be  just,  but  said  that  he 
had  some  offsets,  and  that  at  a  subsequent  time  the  defendant 
promised  the  plaintiff  that  he  would  settle  all  their  differences 
and  accounts  fairly,  and  would  not  avail  himself  of  the  act  of 
limitations.  Held:  This  proof  is  not  sufficient  to  justify  the 
jury  in  finding  for  the  plaintiff. 

In  the  case  of  Bell  vs.  Crawford,  8  Grat.,  110,  decided  July, 
1851,  it  was  held:  A  promise  which  will  remove  the  bar  of  the 
statute  of  limitations  must  be  a  promise  to  pay  a  debt;  and  a 
promise  to  settle  with  the  claimant  is  not  sufficient. 

If  a  part  payment  will  take  a  case  out  of  the  statute,  it  must 
be  a  payment  upon  the  specific  debt,  and  not  a  payment  upon 
account. 

In  the  case  of  TazewelVs  Executor  vs.  Whittle's  Administrator, 
13  Grat.,  329,  decided  May  23,  1856,  it  was  held:  That  the 
creditor  has  furnished  the  executor,  at  his  request,  with  a  state- 
ment of  his  debt  which  the  executor  does  not  object  to,  will  not 
remove  the  bar  of  the  statute. 

In  the  case  of  Dinguid  vs.  Schoolfield,  32  Grat.,  803,  decided 
February  19,  1880,  it  was  held :  A  deposition  of  a  maker  of  a 
note  given  and  signed*  by  him,  in  a  case  in  which  the  obligee 
was  not  a  party  for  the  purpose  of  obtaining  a  credit  for  it  as  to 
be  paid  by  him,  and  for  which  he  was  allowed  such  a  credit  in  that 
case,  is  such  an  acknowldgement  of  the  debt  by  him  as  will 
defeat  the  plea  of  the  statute  of  limitation  in  an  action  on  the 
note  by  the  obligee  against  him. 

In  the  case  of  Shepherd  vs.  Thompson,  122  U.  S.  S.  C.  Ke- 
ports,  231,  decided  May,  27,  1887,  it  was  held:  A  promissory 
note,  secured  by  mortgage  of  the  same  date,  is  not  taken  out  of 
the  statute  of  limitations,  as  against  the  debtor,  by  a  writing 
signed  by  him  by  which  "in  consideration  of  the  indebtedness 
described  in  the  mortgage,  a  claim  of  his  against  the  govern- 
ment and  its  proceeds  are  "pledged  and  made  applicable  to  the 
payment  of  said  indebtedness,  with  interest  thereon  at  the  rate 
of  eight  per  cent,  per  annum  until  paid,"  and  he  promises  that 
those  proceeds  "shall  be  applied  to  the  payment  of  said  indebt- 
edness, with  interest  as  aforesaid,"  or  to  so  much  thereof  as 
"  those  proceeds  "  are  sufficient  to  pay. 

In  the  case  of  Sweitzer  vs.  Noffsinger,  82  Va.,  518,  decided 
November  11,  1886,  it  was  held:  New  promise  to  remove  the 
bar  must  be  determinate  and  unequivocal,  and  by  one  against 
whom  the  right  to  maintain  an  action  has  accrued.  Acknowledg- 
ment from  which  promise  may  be  implied  must  be  unqualified. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  732. 


602  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Morns  vs.  Lyon,  84  Ya.,  331,  decided  January 
19,  1888.  In  an  action  of  detinue  defendant  pleaded  that  the 
cause  of  action  did  not  accrue  within  five  years  next  before 
action  brought ;  plaintiff  replied,  admitting  averment  of  plea,  but 
averring  subsequent  acknowledgment  of  title  in  plaintiff  made 
within  five  years.  Defendant  demurred  to  this  replication. 
Held :  The  demurrer  was  properly  sustained. 

Section  2923. 

In  the  case  of  Kayser  vs.  Disher,  9  Leigh,  357,  decided  Aprils 
1838,  it  was  held :  An  action  at  law  by  a  legatee  against  an  ex- 
ecutor for  a  legacy,  or  the  executor's  promise  to  pay  it,  must  be 
brought  against  the  executor  in  his  individual,  not  his  represen- 
tative character,  and  the  judgment  in  such  case  must  be  de  bonis 
propnis. 

If  in  a  declaration  in  assumpsit  against  an  executor  there  be 
one  count  against  him  in  his  representative,  and  the  others 
against  him  in  his  individual  character,  this  is  a  misjoinder  of 
action,  fatal  on  general  demurrer. 

In  the  case  of  Seig  (Administrator)  vs.  Accord's  Executor,  21 
Grat.,  365,  decided  August,  1871,  it  was  held:  A  debt  which  is 
barred  by  the  statute  of  limitations  at  the  death  of  the  debtor 
cannot  be  revived  by  the  promise  of  the  personal  representative 
to  pay  it. 

Where  they  are  two  joint  administrators,  or  executors,  to  one 
of  whom  the  deceased  was  indebted  in  his  lifetime  for  money 
loaned  so  long  before  the  death  of  the  debtor  that  at  the  time 
of  his  death*  it  was  barred  by  the  statute,  the  debt  cannot  be 
revived  by  the  admission  of  the  other  administrator  or  executor 
that  the  money  had  been  loaned  and  was  due. 

In  the  case  of  Smith  vs.  Pattie,  81  Va.,  654,  decided  April 
15,  1886,  it  was  held :  Where  the  administrator  is  sole  heir  and 
distributee  of  his  intestate,  and  there  are  judgments  against 
him  individually  which  attached  to  the  intestate's  estate  as 
soon  as  it  descended  upon  his  said  heir  and  distributee,  and 
their  debts  against  the  intestate,  which  are  barred  by  the  statute 
of  limitations,  the  administrator  cannot  revive  those  debts  and  re- 
pel the  bar  by  any  promise  in  writing  or  otherwise,  but  is  bound 
to  plead  the  statutes  against  those  debts;  and  if  he  refuses  or 
fails  to  do  so,  it  is  the  right  of  the  judgment  creditor,  by  reason 
of  his  interest  in  the  fund,  to  interpose  the  plea. 

Section  2924. 

In  the  case  of  Johntson  {Trustee)  etc.,  vs.  Wilson's  Administra- 
tor, et  als.,  29  Grat.,  379,  decided  November,  1877,  it  was  held : 
A  devise  of  real  estate  for  the  payment  of  debts  will  not  effect 
the  operation  of  the  statute  of  limitations  upon  such  debts^ 


Citations  to  the  Code  op  Virginia.  603 

whether  they  be  barred  at  the  testator's  death  or  not,  unless  the 
contrary  intention  on  his  part  plainly  appears. 

Section  2927. 

In  the  case  of  Keicby's  A  dministrators  vs.  BlaJcely,  3  H.  & 
M.,  57,  decided  October,  1808,  it  was  held :  A  plaintiff  in  deti- 
nue, who,  after  having  five  years  peaceable  possession  of  a 
slave  acquired  without  force  or  fraud,  loses  that  possession, 
may  regain  it  on  the  mere  ground  of  his  previous  possession,  on 
the  same  ground  that  a  defendant  may  protect  himself  on  that 
length  of  possession  under  the  act  of  limitations. 

But  such  recovery  will  not  affect  the  rights  of  others  not 
parties  to  the  suit. 

In  the  case  of  Spotswood  vs.  Dandridge,  4  H.  &  M.  139,  de- 
cided October,  1809,  it  was  held  :  To  prevent  length  of  time 
barring  a  claim  on  the  ground  that  the  possession  of  the  de- 
fendant was  fiduciary,  such  posession  must  have  been  fiduciary 
as  to  the  plaintiff,  or  those  under  whom  he  claims.  Its  being 
fiduciary  as  to  any  other  person  is  not  sufficient. 

An  executor  having  delivered  certain  slaves  to  legatees  as 
their  property  under  the  will,  a  subsequent  action  of  detinue 
against  him  for  other  slaves  which  testator  held  in  the  same 
right  is  not  sufficient,  though  prosecuted  to  a  judgment,  to  pre- 
vent the  act  of  limitations  from  running,  both  at  law  and  in 
equity,  in  favor  of  the  legatees. 

In  the  case  of  Redwood  vs.  Riddick  et  ux.,  4  Munf.,  222,  de- 
cided March  3,  1814,  it  was  held :  A  trustee  cannot  take  advan- 
tage of  the  act  of  limitations  against  the  claim  of  the  cestui  que 
trust,  or  of  person  claiming  under  him. 

In  the  case  of  Elam  vs.  Bass's  Executors,  4  Munf.,  301,  de- 
cided November  12,  1814,  it  was  held :  The  defendant  in  deti- 
nue may  protect  himself  on  the  plea  of  noii  detinet  (without 
pleading  the  act  of  limitations)  by  proving  that  he  and  those 
under  whom  he  claims  had  possession  of  the  property  in  con- 
troversy more  than  five  years  before  the  emanation  of  the  writ. 
And  such  evidence  cannot  be  rebutted  by  the  plaintiff's  prov- 
ing that  before  the  five  years  had  elapsed  he  brought  a  suit  in 
chancery  to  recover  the  same  property  (which  suit  was  dis- 
missed on  the  ground  that  his  claim  was  exclusively  cognizable 
at  law),  and  that  within  one  year  after  such  dismission  he  took 
out  the  writ  in  detinue. 

In  the  case  of  Cook  vs.  Darby,  4  Munf.,  444,  decided  October 
18,  1815,  it  was  held:  The  act  of  limitations  may  be  pleaded  in 
bar  to  an  action  against  a  common  carrier  for  fraudulently  em- 
bezzling goods  entrusted  to  his  care. 

It  seems  that  a  plea  of  "the  act  of  limitations"  in  those  words 
only,  to  which  the  plaintiff  replies  generally,  is  good  after  verdict. 


604  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Oarland  vs.  Enos,  4  Munf.,  504,  decided  No- 
vember 22,  1815,  it  was  held:  A  testator  (after  directing  his 
debts  and  some  -legacies  to  be  paid)  bequeathed  the  reside  of  his 
estate  to  his  children,  equally  to  be  divided  among  them,  with  a 
proviso,  that  if  either  of  his  daughters  should  die  without  law- 
ful heir,  her  part  should  be  equally  divided  among  the  survivors 
of  his  children.  One  of  the  daughters  took  possession  of  cer- 
tain slaves  in  her  share,  and  having  married,  died  without  any 
child.  For  more  than  five  years  after  her  death  her  husband 
continued  to  hold  and  use  the  slaves  as  his  own,  without  any 
demand  being  made  by  the  surviving  children  of  the  testator. 
His  possession  was  considered  adverse  to  their  title ;  and  a  pur- 
chase from  him  was  protected  by  the  act  of  limitations. 

In  the  case  of  Hudson  vs.  Iludsoris  Administrator  et  als.,  6 
Munf,,  352,  decided  April  2,  1819,  it  was  held :  If  a  widow, 
holding  by  virtue  of  her  husband's  will,  certain  slaves  for  life, 
with  power  to  dispose  of  them  afterwards  among  his  children  as 
she  should  think  proper,  bequeath  them  to  trustees  for  the  bene- 
fit of  one  only  of  those  children,  such  child  must  be  considered 
as  holding  the  slaves  under  her  will,  adversely  in  relation  to  the 
other  children,  and  therefore  may  be  protected  by  the  act  of 
limitations  from  a  claim  in  their  behalf. 

In  a  case  where  it  is  necessary  to  plead  the  act  of  limitations, 
it  ought,  in  order  to  form  a  bar,  to  be  specially  pleaded,  or  at 
least,  insisted  on,  that  is,  term  prescribed  by  the  statute  should 
be  particularly  (if  not  formally)  pleaded  or  relied  on,  to  let  in 
the  plaintiff  to  show  in  his  replication,  that,  within  that  term,  an 
original  had  been  sued  out,  if  the  fact  were  so,  and  thus  to 
avoid  the  bar. 

A  possession  of  slaves  commencing  during  the  infancy  of  a 
plaintiff  cannot  operate  a  title  in  favor  of  a  defendant,  until  it 
has  continued  five  years  after  such  infancy  has  ceased. 

When  the  act  of  limitations  once  begins  to  run,  it  runs  over 
all  the  mesne  acts,  such  as  coverture,  infancy,  etc. 

In  the  case  of  Vaiden  vs.  Bell,  3  Eand.,  448,  decided  Octo- 
ber, 1825,  it  was  held:  Where  the  characters  of  administrator 
and  distributee  unite  in  the  same  person,  who  holds  possession 
of  personal  property  in  the  former  character  for  more  than  five 
years,  his  rights  as  distributee  will  not  be  barred  by  the  statute 
of  limitations. 

In  the  case  oi' Lynch  vs.  Thomas,  3  Leigh,  682,  decided 
May,  1832.  Testator  bequeathes  a  slave  to  an  infant  son,  and 
then  that  his  wife  shall  hold  the  slave  bequeathed  to  his  son 
till  he  shall  attain  to  full  age.  Held:  The  act  of  limitation 
never  could  begin  to  run  against  the  claim  and  title  of  the  son 
to  the  slave  and  her  increase  till  he  attained  to  full  age. 

In  the  case  of  Hice  vs.  White,  4  Leigh,  474,  decided  April, 


Citations  to  the  Code  of  Vibginia.  605 

1833.  In  an  act  for  deceit  in  a  sale  of  a  chattel,  there  is  a  plea 
of  the  statute  of  limitations,  a  general  replication  thereto,  and 
issue  thereon  joined.  Held :  The  cause  of  action  accrued  at 
the  time  of  the  deceit  practiced,  and  the  limitations  begin  to 
run  immediately. 

It  seems  that  if  the  fraud  was  not  discovered  till  some  time 
after  it  was  practiced,  and  within  the  time  of  limitation,  this 
would  suffice  to  take  the  case  out  of  the  statute ;  but  to  enable 
the  plaintiff  to  avail  himself  of  such  matter,  he  must  plead  it 
especially  in  his  replication. 

The  case  of  Ragland  vs.  Owen  has  been  reported  since  the 
publication  of  the  Code  in  the  84  Va.,  227,  but  does  not  affect 
this  point  at  all. 

In  the  case  of  McClanahan  vs.  Western  Lunatic  Asylum^  88 
Va.,  466,  decided  December  3,  1891,  it  was  held:  The  maxim 
nullura  tempus  occurit  regi  is  not  applicable  to  a  corporation 
having  power  to  sue  and  be  sued,  though  the  State  be  an  incor- 
porator thereof,  but  such  corporator  is  entitled  and  is  amenable 
to  all  legal  defences  which  pertain  to  natural  persons. 

Section  2929. 

In  the  case  of  Wilson  vs.  Buchanan,  7  Grat.,  334  and  343, 
decided  April  28,  1851.  W.,  being  largely  indebted  in  propor- 
tion to  his  property,  made  a  gift  of  slaves  to  his  married 
daughter,  and  her  husband  remained  in  possession  of  them  for 
eight  years.  Judgment  having  been  recovered  on  some  of  these 
debts,  and  also  on  other  debts  contracted  since  the  gift,  B.  be- 
came the  surety  of  W.  in  the  forthcoming  bond,  and  was  com- 
pelled to  pay  the  money.  He  then  recovered  judgment  against 
W.  for  the  amount  so  paid  by  him,  and  all  of  the  property  of 
W.  having  been  then  sold  by  the  directions  of  B.,  his  executions 
were  levied  on  the  slaves  given  by  W.  to  his  daughter  and  their 
increase.     Held :  The  slaves  were  liable  to  satisfy  the  debt  of  B. 

In  the  case  of  Snoddyxs.  Haskins,  12  Grat.,  363,  decided  May 
14,  1855,  it  was  held :  This  statute  does  not  apply  to  cases  of 
actual  fraud. 

In  the  case  of  Williams  vs.  Blakey  {Commissioner),  76  Va., 
254. 

Limitations. — Code  1873,  Chapter  146,  Section  16,  providing 
that  suit  to  set  aside  voluntary  conveyance  must  be  brought 
within  five  years,  refers  to  suits  by  creditors  to  annul  voluntary 
conveyances  by  their  debtor  to  third  persons  in  fraud  of  such 
creditor's  rights,  and  not  to  suit  by  commissioner  to  vacate 
a  deed  executed  by  him,  upon  the  ground  of  fraud  or  under  the 
misrepresentations  of  the  grantee. 

In  the  case  of  Bickle  et  als.  vs.  ChrismarHs  Administratrix, 
etc.,  76  Va.,  678. 


606  Citations  to  the  Code  of  Yirginia. 

Voluntary  Conveyances.  —  Limitations. —  Case  at  Bar. —  In 
1870  C.  assigned  hona  fide,  but  for  no  consideration  deemed 
valuable  in  law,  in  trust  for  his  wife,  two  land  bonds  of  about 
seven  thousand  dollars  each.  The  assignment  was  never  re- 
corded. In  1871  trustee  invested  these  bonds  in  a  farm  for 
Mrs.  C.  In  1878,  C.  having  died,  B.,  assignee  of  H.  and  other 
creditors  of  C.  (whose  cause  of  action  did  not  accrue  until  March, 
1877),  filed  bill  to  subject  the  farm  to  payment  of  their  debts, 
on  the  ground  that  the  assignment  of  the  bonds  wherewith  the 
farm  was  purchased  was  not  on  consideration  deemed  valuable 
in  law.     Mrs.  C.  pleaded  the  limitation.     Held : 

1.  The  suit  to  avoid  the  assignment  was  barred. 

2.  The  statute  begins  to  run  from  the  date  of  the  execution 
of  the  deed,  and  not,  as  usual  under  our  statutes,  from  the  time 
the  right  of  action  accrued. 

3.  The  exceptions  to  the  operation  of  this  statute  must  be 
found  in  the  statute  itself :  "  The  doctrine  of  an  inherent  equity 
creating  an  exception,  when  the  statute  makes  none,  being  now 
universally  exploded." 

In  the  case  of  Welsh  vs.  Soleiiherger,  85  Ya.,  441,  decided 
November  8,  1888,  it  was  held:  In  absence  of  fraud,  suit  by 
creditors  to  annul  conveyance  to  a  husband  in  trust  for  his  wife, 
on  the  ground  that  the  consideration  was  paid  by  him,  is  barred 
by  five  years. 

Section  2930. 

In  the  case  of  Goodwin  vs.  IfcCluer,  3  Grat.,  291,  decided 
July,  1846,  it  was  held :  A  court  of  equity  will  not  entertain  a 
bill  to  repeal  a  patent,  filed  more  than  ten  years  after  the  patent 
was  issued. 

Section  2931. 

In  the  case  of  Baird  vs.  Bland,  et  als.,  3  Munf.,  570,  decided 
January  20,  1812,  it  was  held :  If  parents  in  their  lifetime  be 
deprived  of  slaves  and  depart  this  life  leaving  children  under 
age,  the  act  of  limitations  does  not  run  against  the  children 
until  they  attain  the  age  of  twenty-one  years. 

In  the  case  of  Blakley  vs.  Newhy's  Administrators,  6  Munf., 
64,  decided  January  27,  1818,  it  was  held :  A  plaintiff  suing  for 
slaves  as  administrator  of  his  wife  is  not  barred  by  a  decision 
against  him  in  her  lifetime,  in  a  suit  to  which  she  was  not  a 
party ;  the  ground  of  that  decision  having  been,  under  the  acts 
of  limitations,  that  the  opposite  party  had  obtained  a  legal  title 
to  the  slaves  by  five  years  possession,  commencing  during  the 
coverture ;  during  which,  also,  the  right  of  the  wife  accrued ; 
and  the  husband  having  never  had  possession  in  his  character 
as  husband. 

In  the  case  of  Hudson  vs.  Hudson! s  Administrator  et  als.,  6 


Citations  to  the  Code  of  Vieginia.  607 

Munf.,  352,  decided  April  2,  1819,  it  was  held:  A  possession  of 
slaves  commencing  during  the  infancy  of  a  plaintiff  cannot 
operate  a  title  in  favor  of  a  defendant,  until  it  has  continued 
five  years  after  such  infancy  has  ceased. 

In  the  case  of  Hansford  vs.  Elliott,  9  Leigh,  79,  decided 
December,  1837,  it  was  held :  Persons  claiming  rights  of  per- 
sonal property,  being  under  disability  of  infancy  or  coverture 
when  their  rights  accrue,  may  prosecute  any  remedy  in  equity 
they  are  entitled  to,  hj  prochein  ami,  at  any  time  while  the  dis- 
ability continues,  no  matter  how  long ;  or  in  their  proper  per- 
sons, within  five  years  after  the  disability  removed;  the  right 
to  such  remedy  being  within  the  saving  clause  of  the  statute  of 
limitations. 

In  the  case  of  Parsons  vs.  McCracken,  9  Leigh,  495,  decided 
July,  1838.  A  female  slave  is  bequeathed  |py  a  father  to  his 
daughter,  but  the  name  of  the  slave  having  been  altered  after  it 
was  first  written,  it  is  doubtful  whether  the  bequest  is  of  Harriet 
or  Helen.  The  executors  considering  Harriet  to  have  been  the 
slave  intended,  deliver  her  to  the  daughter.  She  is  of  equal 
value  with  Helen,  and,  indeed,  preferred  by  the  daughter,  who, 
though  not  of  age,  accepts  her,  and  hires  her  out  till  Harriet 
<ilies.  Helen  is  delivered  to  another  legatee  and  sold  by  him. 
After  about  twenty  years  from  the  time  that  the  slaves  were 
<ielivered  to  the  legatees,  and  more  than  five  years  from  the 
time  that  the  daughter  attained  full  age,  a  bill  in  equity  is 
brought  by  her  husband  and  herself  to  recover  Helen  and  her 
children.  Held :  The  length  of  time,  and  the  acquiescence  of 
the  daughter  in  the  manner  of  executing  the  will,  are  sufficient 
grounds  for  dismissing  the  bill. 

It  seems,  if  a  party  claim  the  benefit  of  the  saving  for  infants 
and  femes  covert  in  an  act  of  limitations,  no  other  disability  is 
a,vailable  than  the  one  which  existed  when  the  right  of  action 
accrued. 

In  the  case  of  BlackwelVs  Administrators  vs.  Bragg  {Trustee) 
et  als.,  78  Va.,  529,  decided  April  17, 1884,  it  was  held:  If  party 
claims  benefit  of  saving  for  infants  and  femes  covert  in  statute 
of  limitations,  no  other  disabiHty  is  available  than  the  one 
which  existed  when  right  of  action  accrued.  One  cannot  be 
mounted  on  another  so  as  to  present  continuous  obstruction, 
therefore  the  disability  of  marriage  cannot  be  tacked  on  to  that 
of  infancy.  Quoad,  two  or  more  disabilities  co-existing  in  the 
same  person  when  his  right  of  action  accrues,  the  rule  is  dif- 
ferent, and  he  is  not  obliged  to  act  until  the  last  is  removed. 

When  the  statute  begins  to  run,  no  new  disability  can  stop  its 
running. 

Section  2932. 

In  the  case  of  Clark  vs.  Hardiman,  2  Leigh,  347,  decided  Oc- 


608  Citations  to  the  Code  of  Vieginia. 

tober,  1830.  H.  holds  certain  slaves  during  his  lifetime.  After 
his  death  his  widow  claims  these  slaves  as  her  own  property, 
and  holds  adversary  possession  of  them  for  more  than  five 
years;  then  administration  of  H.'s  estate  is  committed  to  the 
sheriff,  who  gets  possession  of  the  slaves,  and  a  creditor  of  H., 
who  had  recovered  judgment  against  the  sheriff,  administrator 
levies  an  execution  on  one  of  them,  which  is  sold  to  satisfy  the 
same  in  detinue  by  the  widow  against  the  purchaser.  Held: 
That  the  statute  of  limitations  did  not  enure  to  give  the  widow 
a  title  to  the  slaves,  since  it  did  not  begin  to  run  till  an  ad- 
ministrator of  her  husband's  estate  was  appointed. 

See  the  case  of  Hansfoi^d  vs.  Elliott,  9  Leigh,  79,  cited  ante. 
Section  2931. 

Section  2933. 

In  the  case  of  Holladay,  Executor  of  Littlepage  vs.  Littlepage, 
2  Munf.,  316,  decided  June  19,  1811,  it  was  held:  A  mutual  un- 
derstanding and  agreement  between  a  debtor  and  creditor  that 
suit  shall  not  be  brought  upon  an  account  until  the  debtor  shall 
have  gone  to  Europe  and  returned,  is  a  good  bar  to  the  act  of 
limitations  during  his  absence  from  this  country,  and  may  be 
given  in  evidence  to  prevent  the  court's  expunging  from  such 
account  items  appearing  to  have  been  due  five  years  before  his 
death. 

In  the  case  of  Kitty  vs.  Fitzhugh,  4  Eand.,  600,  decided  Jan- 
uary, 1827,  it  was  held :  If  a  slave  be  taken  from  the  possession 
of  his  owner  by  fraud  or  violence,  unaccompanied  by  any  hona 
fide  claim  of  propeiiy,  no  length  of  time  will  bar  the  action  of 
the  true  owner. 

In  the  case  of  Rankin  vs.  Bradford  et  als.,  1  Leigh,  163,  de- 
cided March,  1829,  it  was  held :  E.  C.  bequeathed  four  slaves 
to  C.  C.  and  F.  T.,  trustees,  in  trust,  to  apply  the  profits  to 
maintenance  of  testator's  daughter,  J.  B.,  and  her  husband  S. 
K.  B.  and  their  children,  during  lives  of  daughter  and  husband 
and  of  survivor,  remainder  to  the  children  of  the  daughter  by 
that  husband.  Both  trustees  declined  the  trust.  No  trustee 
was  substituted.  The  executor  delivered  the  slaves  to  B.,  her 
husband  being  then  in  Europe,  where  he  died.  B.  then  married 
v.,  who  in  1798,  sold  K.  all  the  trust  slaves  for  his  wife's  life,  E. 
having  notice  of  the  trust.  E.  removed  them  from  Fredericks- 
burg to  Augusta,  held  some  there,  gave  away  some,  sold  others ; 
the  second  husband  died  in  1806 ;  upon  bill  in  chancery  by  Mrs. 
V.  and  her  children  by  B.  against  E.,  praying  discovery  of 
names,  etc.,  of  the  slaves  and  their  increase,  restoration  of  them 
and  account  of  profits,  and  (on  a  charge  that  E.  would  remove 
the  property  out  of  the  State)  an  injunction  to  restrain  him  fi-om 
doing  so ;  and  E.  not  pleading  to  the  jurisdiction.     Decreed : 

1.  E.  had  no  right  to  hold  the  slaves  even  during  Mrs.  V.'s 


Citations  to  the  Code  of  Virginia.  609 

life,  as  tliey  were  a  trust  subject,  and  the  profits  applicable  to 
her  and  her  children ;  though  quaere  how  far  her  interest  passed 
by  her  second  husband's  sale  to  R. 

2.  The  court  of  chancery  had  jurisdiction  of  the  case;  be- 
cause the  charges  in  the  bill  of  the  necessity  of  a  discovery,  and 
of  the  design  to  remove  the  slave  out  of  use,  saved  the  bill  from 
being  demurrable,  and  if  that  charge  were  only  colorable,  R. 
should  have  pleaded  to  the  jurisdiction,  and  chiefly  because  the 
slaves  were  a  trust  subject,  represented  by  no  trustee  who  could 
sue  at  law,  and  which  equity  alone  could  apply  to  the  purposes 
of  the  trust. 

3.  R.  could  not  protect  himself  under  the  statute  of  limita- 
tions, because  he  bought  with  notice  of  the  trust,  and  so  was 
charged  with  it,  and  because  his  removal  of  the  slaves  to  a 
distant  county,  thus  keeping  owners  in  ignorance  where  they 
were,  was  an  obstruction  to  the  assertion  of  their  rights  of  action, 
precluding  him  from  pleading  the  statute. 

In  the  case  of  Shields  { Administrator) ^  etc.,  of  Waller  et  als. 
vs.  Anderson,  Administrator  of  Byrd ,  etc.,  3  Leigh,  729,  decided 
May,  1832,  it  was  held :  To  a  bill  in  equity  by  a  creditor  for  re- 
lief against  a  fraudulent  conveyance  of  his  debtor,  the  act  of 
limitation,  if  well  pleaded  in  bar,  would,  it  seems,  run  only  from 
the  time  when  the  fraud  was  discovered. 

See  the  case  of  lilce  vs.  White,  4  Leigh,  474,  decided  April, 
1833,  ante,  Section  2927. 

In  the  case  of  Bowles  {Executor),  vs.  Elmore's  Admiiiistratrix^ 
7  Grat.,  385,  decided  May  5,  1851.  In  September,  1837,  the 
administratrix  of  E.  sued  the  executor  of  B.  in  debt  on  a  pro- 
missory note  dated  June,  1817.  The  executor  pleaded  the 
statute  of  limitations  ;  and  the  administratrix  replied  that  after 
making  the  note,  B.  having  become  the  bail  of  E.,  they,  in  Oc- 
tober, 1818,  entered  into  a  covenant  by  which  it  was  agreed 
that  E.  should  deliver  to  B.  the  note  of  B.,  who  was  to  hold  it 
until  the  liability  of  B.  as  bail  was  ended,  and  then  he  was  to 
re-deliver  it  to  E.  That  pending  the  suit  E.  died  in  Februaiy, 
1832,  and  that  there  was  no  administration  on  his  estate  until 
August,  1836.  There  was  a  demurrer  to  the  replication,  which 
was  sustained,  because  there  was  no  profert  of  the  covenant. 
The  plaintiff  was  then  allowed  to  amend  the  replication  by 
adding  the  profert  of  the  covenant,  and  the  defendant  again 
demurred.  Held :  The  statute  of  limitations  did  not  run  from 
the  time  the  covenant  was  executed  until  the  liabiUty  of  B.  as 
bail  ceased. 

In  the  case  of  FicklinHs  Executor  vs.  Carrington,  31  Grat., 
219,  decided  December  12,  1878,  it  was  held  :  Where  a  debtor 
who  resides  in  the  State  removes,  after  contracting  the  debt,  to 
another  State,  the  removal  is  itself  an  obstruction  to  the  prose - 

39 


610  Citations  to  the  Code  of  Virginia. 

cution  of  a  suit  by  the  creditor  to  recover  the  debt,  and  the 
statute  of  limitations  will  not  run  against  the  debt  whilst  the 
debtor  resides  out  of  the  State. 

See  the  case  of  Bickle  et  als.  vs.  Christman*8  Executor,  76 
Ya.,  678,  ante,  Section  2929. 

The  case  of  Ragland  vs.  Owen,  has,  since  the  publication  of 
the  Code,  appeared  in  84  Va.,  227,  but  does  not  affect  this  sec- 
tion. 

Section  2934. 

In  the  case  of  Browne  s  Executor  vs.  Putney,  1  "Wash.,  302, 
decided  at  the  fall  term,  1794.  The  plaintiff  allowed  four 
years  to  elapse  after  abatement,  on  return  of  no  inhabitant. 
Held:  He  would  have  been  entitled  to  the  benefit  of  the  pro- 
viso in  the  act  of  limitations  under  the  equity  thereof,  if  be  had 
recommenced  his  suit  within  a  year  after  the  former  suit  was 
abated. 

In  the  case  of  Bogle  et  als.  vs.  Conway's  Executors,  3  Call,  1, 
decided  April  24,  1801,  it  was  held:  If  in  assumpsit  the  de- 
fendant plead  the  act  of  limitations  and  the  plaintiff  would 
avoid  the  plea  by  a  former  suit  having  been  brought  in  time, 
he  must  reply  to  the  former  suit  specially ;  he  cannot  give  it  in 
evidence  under  a  general  replication  to  the  plea. 

In  the  case  of  Callis  vs.  Waddey,  2  Munf.,  511,  decided  De- 
cember 5,  1811,  it  was  held:  It  is  no  answer  to  the  bar  set  up 
by  the  plea  of  limitations  that  the  plaintiff  sued  out  a  writ  for 
the  same  cause  of  action  within  the  time  prescribed  by  the  act, 
which  writ  was  executed  and  returned,  and  went  off  the  docket 
for  want  of  formality. 

In  the  case  of  Gray's  Administratrix  vs.  Berryman,  4  Munf., 
181,  decided  March  2,  1813,  it  was  held :  If  a  bill  in  chancery 
be  dismissed  on  the  ground  that  the  plaintiff's  claim  is  exclu- 
sively cognizable  at  law,  he  cannot  plead  the  pendency  of  such 
suit  in  chancery  to  prevent  the  act  of  limitations  from  being  a 
bar  to  his  subsequent  recovery  at  law. 

See  the  case  of  Elam  vs.  Bass's  Executors,  4  Munf.,  301,  a7itey 
Section  2927. 

Section  2935. 

In  the  case  of  TunstalVs  Administrator  vs.  Withers  et  als., 
86  Va.,  892,  decided  May  8,  1890,  it  was  held :  Though  action 
at  law  to  recover  purchase-money  be  barred,  yet  suit  in  equity 
to  enforce  the  vendor's  lien  is  not  affected  by  any  time  insuffi- 
cient to  raise  presumption  of  payment. 

Section  2936. 
See  the  references  given  to  Section  4204. 
In  the  case  of  Johnston  vs.  Gill  et  als.,  27  Grat.,  587,  decided 
July  19,  1876,  it  was  held,  p.  595  :  The  stay  law  suspended  the 


Citations  to  the  Code  of  Virginia.  611 

statute  of  limitations  as  to  suits  to  set  aside  fraudulent  convey- 
ances. 

In  the  case  of  Campbell  et  als.  vs.  Holt,  115  U.  S.,  S.  C.  Ke- 
ports,  620,  decided  December  7,  1885,  it  was  held  :  The  repeal 
of  a  statute  of  limitations  of  actions  on  personal  debts  does  not, 
as  applied  to  a  debtor,  the  right  of  action  against  whom  is 
already  barred,  deprive  him  of  his  property  in  violation  of  the 
Fourteenth  Amendment  of  the  Constitution  of  the  United 
States. 

Section  2937. 

In  the  case  of  Le  Yasser  vs.  Washhum,  11  Grat.,  672,  decided 
July,  1854,  it  was  held,  pp.  576-78 :  Time  does  not  run  against 
the  Commonwealth. 

Though  an  adversary  possession  of  land  had  commenced  to 
run  against  the  true  owner,  yet  upon  the  forfeiture  of  the  land 
to  the  Commonwealth,  under  the  delinquent  land  laws,  the  pos- 
session, until  the  land  is  sold  by  the  Commonwealth,  is  no 
longer  adversary  against  her,  or  her  grantee  claiming  under  a 
conveyance  from  a  commissioner  of  delinquent  lands. 


TITLE  XLIII. 
CHAPTEE  CXL. 

Section  2939. 

In  Ex  Parte  Marx,  86  Va.,  40,  decided  April  18,  1889,  it 
was  held:  The  fine  prescribed  for  violating  the  Sabbath,  is 
recoverable  before  a  justice  and  by  a  civil  warrant.  The  con- 
stitutional rights  to  trial  by  jury  does  not  extend  to  such  an 
offence. 

In  the  case  of  Western  Union  Telegraph  Company  vs.  Petty- 
john, 88  Va.,  296,  decided  July  19,  1891,  it  was  held:  The 
penalty  of  one  hundred  dollars,  imposed  by  Section  1292  upon 
telegraph  companies  for  failure  to  deliver  a  dispatch,  being  a 
fine,  a  justice  of  the  peace  has  not  jurisdiction  of  any  claim  to 
recover  the  same,  as  it  exceeds  twenty  dollars. 

When  the  cause  of  action  is  not  within  the  jurisdiction 
granted  by  law  to  the  tribunal,  the  court  will  dismiss  the  suit  at 
any  time  when  the  fact  is  brought  to  its  notice. 

Section  2952. 
In  the  case  of  Ilendricks  vs.  Shoemaker,  3  Grat.,  197,  decided 
July,  1846,  it  was  held :  One  joint  notice  to  the  constable  and 
his  sureties,  upon  default  of  the  constable  in  several  cases,  is 
sufficient;  and  the  justice  should  give  a  separate  and  distinct 
judgment  in  each  case. 


612  Citations  to  the  Code  of  Virginia. 

Section  2953. 

Id  the  case  of  Smith  vs.  The  Governor,  2  Rob.,  229,  decided 
July,  1843,  it  was  held:  In  an  action  against  a  constable  and 
the  sureties  in  his  official  bond  for  failing  to  pay  over  debts 
intrusted  to  the  constable,  and  received  by  him  from  the  debtors, 
the  receipt  of  the  constable  for  the  debts,  signed  in  his  official 
character,  is  prima  facie  evidence,  as  well  against  the  securities 
as  against  the  constable,  of  the  receipt  of  the  money,  provided  six 
months  have  elapsed  between  the  date  of  the  receipt  and  the 
commencement  of  the  action.  But  the  fact  that  the  receipt  of 
the  constable  was  signed  in  his  official  character  must  appear 
in  some  way  on  the  face  of  the  paper  itself;  if  it  do  not,  the 
party  claiming  under  the  receipt  cannot  obtain  the  benefit  of 
the  act  by  oral  testimony  of  the  character  in  which  the  receipt 
was  signed. 

In  the  case  of  McNeale  vs.  Governor  for  Clarke,  3  Grat.,  299, 
decided  July,  1846,  it  was  held :  The  receipt  of  a  constable  for 
a  debt,  claim,  or  execution,  is  evidence  against  the  constable  and 
his  sureties  that  the  debt,  etc.,  has  come  to  his  hands,  though 
such  receipt  does  not  purport  to  be  given  in  his  official  character. 

If  such  receipt  purports  upon  its  face  to  have  been  given  in 
his  official  character,  and  six  months  have  elapsed  from  the 
date  thereof  before  the  commencement  of  the  action,  such  re- 
ceipt is  prima  facie  evidence  of  the  receipt  of  the  money  by 
the  constable  when  the  debt,  claim,  or  execution  was  placed  in 
his  hands  to  be  warranted  for,  and  was  such  as  might  have  been 
recovered  upon  by  warrant. 

If  such  a  receipt  of  a  constable  in  his  official  character  is  for 
a  debt  or  claim  other  than  such  an  execution,  it  need  not  be  ex- 
pressed, but  ought  to  be  intended,  unless  the  contrary  appears, 
that  it  was  placed  in  the  constable's  hands  to  be  warranted  for, 
and  that  it  might  have  been  recovered  by  warrant ;  but  if  the 
receipt  is  for  an  execution,  it  ought  to  be  intended,  unless  the 
contrary  appears,  that  it  was  placed  in  his  hands  not  to  be  war- 
ranted upon,  but  to  be  levied  according  to  law. 

If  such  receipt  of  the  constable  in  his  official  character  ap- 
pears upon  its  face  to  have  been  given  for  an  execution  in  which 
the  relator  in  the  action  is  not  the  plaintiff,  though  he  may  be 
equitably  entitled  to  the  money,  or  to  have  been  given  for  any 
other  debt  or  claim  upon  which  the  relator  could  not  have  main- 
tained a  warrant  in  his  own  name,  then  the  receipt  is  not  ad- 
missible evidence  to  sustain  the  action  of  such  relator. 

If  from  the  receipt  of  the  constable  in  his  official  character  it 
does  not  appear  who  was  the  plaintiff  in  the  execution,  or  in 
the  case  of  any  other  debt  or  claim  who  was  the  creditor  enti- 
tled to  maintain  a  warrant  in  his  own  name,  then  it  shall  be  in- 
tended that  the  person  to  whom  such  receipt  was  given  was 


Citations  to  the  Code  op  Virginia.  613 

such  plaintiff  or  sucli  creditor,  unless  the  contrary  is  made  to 
appear  by  proper  evidence. 

A  receipt  of  a  constable  for  such  claims  as  are  properly 
placed  in  a  constable's  hands  to  be  collected  according  to  law, 
signed  by  him,  with  initials  appended  to  his  name,  which  stand 
for  constable  of  his  county,  sufficiently  indicate  the  official  char- 
acter of  the  deceased. 

A  constable  is  an  officer  appointed  for  the  whole  county,  and 
though  he  is  prohibited  by  law,  under  a  penalty,  from  execut- 
ing warrants  and  levying  exactions  out  of  his  particular  pre- 
cinct, yet  his  official  acts  in  any  part  of  the  county  are  valid, 
and  he  and  his  sureties  in  his  official  bond  responsible  therefor. 


;chapte;e  cxli. 

Section  2959. 

In  the  case  of  Pulliam,  etc.,  vs.  Aler,  15  Grat.,  54,  decided 
January,  1859,  it  was  held :  An  attachment  may  be  issued  un- 
der the  first  section  of  the  Code,  Chapter  151,  p.  600,  after  the 
action  has  been  commenced,  if  it  be  done  before  the  abatement 
of  the  suit  by  the  return  of  the  officer. 

An  attachment;  is  not  defective  because  it  does  not  designate 
any  person  in  whose  possession  property  or  effects  of  the  absent 
debtor  may  be  found. 

Though  the  service  of  an  attachment  upon  garnishees  and 
the  return  thereon  be  irregular,  yet  if  the  garnishees  appear  to 
the  action  and  defend  it,  without  objecting  to  the  irregularity, 
they  cannot  afterwards  make  the  objection  iu  the  appellate 
court. 

Money  is  left  with  a  person,  who  is  a  member  of  a  firm,  on 
a  special  deposit,  and  in  his  absence  it  is  entered  on  the  books 
of  the  firm  to  the  credit  of  the  depositor,  and  paid  out  by  the 
firm  for  their  own  uses,  they  paying  the  depositor's  check  upon 
it,  by  checks  in  their  name  upon  the  bank,  and  then  an  attach- 
ment is  served  upon  the  firm  as  garnishees  in  a  suit  against  the 
depositor,  the  summons  being  served  on  the  other  members  of 
the  firm.  The  attachment  binds  the  money  in  the  hands  of  the 
firm. 

In  the  case  of  Benn  vs.  Hatcher  et  als.,  81  Va.,  25,  decided 
April  30,  1885,  it  was  held,  pp.  33-6 :  The  affidavit  whereon  an 
attachment  is  issued  in  a  pending  suit  need  not  describe  the 
affiant  as  the  plaintiff,  or  as  the  attorney  in  fact  of  the  plaintiff!, 

In  the  case  of  »/.  and  11.  Br'ien  vs.  Plttman  <&  Co.,  12  Leigh, 
380,  decided  November,  1841.  In  proceeding  by  foreign  attach- 
ment in  chancery.  Held :  Error  to  decree  for  plaintiff  without 
affidavit  of  defendant's  non-residence. 

Error  to  decree  sale  of  lands,  without  requiring  bond  with 


614  Citations  to  the  Code  of  Virginia. 

surety  from  plaintiff,  in  double  the  reported  value  of  the  lands, 
with  condition  for  performing  future  orders  or  decrees. 

In  the  case  of  Anderson  vs.  Johnson,  32  Grat.,  558,  decided 
November,  1879,  it  was  held :  If  in  a  suit  in  equity  against  an 
absent  defendant  to  attach  his  property  for  the  satisfaction  of  a 
debt  it  appears  from  the  bill  that  the  court  has  jurisdiction  of 
the  case,  it  is  not  necessary  that  the  affidavit  should  state  that 
the  defendant  has  property  in  the  county  where  the  suit  is 
brought,  but  it  is  sufficient  if  it  states  that  he  has  property  and 
effects  in  any  county  of  the  State. 

If  in  such  case  the  affidavit  is  defective,  the  remedy  is  by 
motion  to  quash  the  attachment. 

If  it  appears  that  a  copy  of  the  attachment  was  served  on 
the  defendant  sixty  days  before  the  decree  for  the  sale  of 
the  land  attached,  the  decree  for  the  sale  may  be  made  without 
requiring  the  bond  provided  for  in  the  statute.  Code  of  1873, 
Chapter  148,  Section  24,  p.  1015. 

The  certificate  of  M.,  describing  himself  as  a  justice  of  the 
peace  of  the  county  of  B.  in  the  State  of  Ohio,  that  P.,  a  deputy 
sheriff  of  said  county  and  State,  had  made  oath  before  him,  the 
said  M.,  of  a  delivery  to  the  defendant  of  a  copy  of  the  sum- 
mons and  attachment  not  objected  to  in  the  court  below,  cannot 
be  objected  to  in  the  appellate  court. 

Under  the  statute,  Code  1873,  Chapter  148,  Section  27,  a  de- 
fendant in  a  foreign  attachment  suit  may  appear  at  any  time 
pending  the  suit,  and  have  the  cause  reheard  tendering  the 
security  for  the  costs.  And  the  proviso  to  the  statute  which 
excepts  from  the  operation  of  the  act  a  case  in  which  defendant 
was  served  with  a  copy  of  the  attachment,  or  with  process  in 
the  suit,  issued  more  than  sixty  days  before  the  decree,  only 
refers  to  such  a  service  in  the  proceedings  in  the  suit  and  out 
of  the  State;  and  a  service  out  of  the  State  and  out  of  the  suit 
can  have  no  greater  effect  than  so  great  an  order  of  publication 
duly  posted  and  published. 

Where  persons  claiming  the  property  attached  or  some  inter- 
est in  it,  are  admitted  as  parties  in  the  cause,  their  claim  is  to 
be  tried  by  a  jury  empanelled  for  the  purpose,  as  provided  by 
the  statute.  Code  of  1873,  Chapter  148,  Section  25,  and  it  is 
error  for  the  court  to  pass  upon  the  claim  without  the  interven- 
tion of  a  jury. 

Where,  on  the  motion  of  the  defendant  in  an  attachment  case, 
the  plaintiff,  who  is  a  non-resident  of  the  State,  is  ordered  to  give 
security  for  the  cost  of  the  suit  within  sixty  days,  and  fails  to  do 
so,  his  bill  should  be  dismissed ;  and  it  is  error  to  proceed  to 
hear  and  decide  the  cause. 

On  reversing  the  decree  and  remanding  the  cause,  the  appel- 
late court  will  not  direct  the  suit  to  be  dismissed  at  once  for  the 


Citations  to  the  Code  of  Virginia.  615 

failure  of  the  plaintiff  to  give  security  for  costs,  but  will  direct 
that  he  is  allowed  a  reasonable  time  to  comply  with  the  order. 

In  the  case  of  Clowser  vs.  Hall,  80  Va.,  864,  decided  October 
8,  1885,  it  was  held :  Every  averment  in  an  affidavit  to  support 
an  attachment  under  Code  1873,  Chapter  148,  Section  1,  must 
be  stated  as  a  fact,  absolutely,  and  upon  affiant's  own  knowledge, 
and  not  upon  belief,  or  information  and  belief. 

For  reference  to  81  Va.,  23,  35-'6,  see  Benn  vs.  Hatcher  et 
ah.,  supra,  this  section. 

In  the  case  of  Kelso  vs.  Blackburn,  3  Leigh,  323,  decided 
December,  1831,  it  was  held :  In  a  bill  in  chancery  against  a 
debtor  as  an  absent  debtor  or  defendant,  and  other  defendants 
resident,  holding  lauds  by  voluntary  or  fraudulent  conveyances 
from  the  debtor,  to  have  a  decree  against  the  debtor  for  the 
debt,  and  against  the  home  defendants  to  subject  the  lands  to 
the  debt,  the  bill,  in  order  to  give  the  court  jurisdiction  under 
the  statute  concerning  attachments  and  suit  against  absent  de- 
fendants, must  distinctly  aver  the  non-residence  of  the  debtor, 
and  if  the  home  defendants  in  their  answers  say  that  the  debtor 
is  a  resident,  though  they  do  not  plead  that  matter  in  abate- 
ment to  the  jurisdiction,  the  plaintiff,  to  sustain  the  jurisdic- 
tion and  prove  the  fact  of  the  debtor's  residence  abroad,  and 
if  his  non-residence  be  not  distinctly  averred  in  the  bill,  or,  if  so, 
denied  by  the  home  defendants,  be  not  proved,  the  court  has  no 
jurisdiction,  and  a  decree  for  the  plaintiff  will  be  reversed  on 
that  ground. 

In  the  case  of  Tfie  Bank  of  the  United  States  Incorporated  hy 
Pennsylvania  et  als.  vs.  T?ie  Merchants'  Bank  of  Baltimore,  1 
Kob.,  573  (2d  edition,  605).  Under  the  act  in  1  Rev.  Code,  1819, 
Chapter  123,  p.  474,  directing  the  method  of  proceeding  in 
courts  of  equity  against  absent  debtors,  a  creditor  of  a  corpora- 
tion created  by  another  State  may  maintain  a  suit  in  equity 
against  such  corporation  as  a  defendant  out  of  this  Common- 
wealth, where  there  are  persons  within  the  same  who  have 
in  their  hands  effects  of,  or  are  indebted  to,  such  absent 
defendant;  or  may  maintain  a  suit  in  equity  against  such  cor- 
poration as  an  absent  defendant,  where  it  has  lands  or  tene- 
ments within  the  Commonwealth. 

In  the  case  of  Clark  vs.  Ward  et  als.,  12  Grat.,  440,  decided 
May  22,  1855,  it  was  held :  W.,  living  in  Virginia,  determines 
to  remove  to  another  State;  and  in  pursuance  of  that  purpose 
leaves  the  place  where  he  has  resided,  and  proceeds  directly  to 
the  place  where  he  intends  to  reside.  He  is  a  non-resident  of 
the  State  in  the  sense  of  the  attachment  law  directly  he  com- 
mences his  removal,  and  before  he  gets  beyond  the  limits  of 
the  State. 

In  the  case  of  Long  vs.  liyan  et  ah.,  30  Grat.,  718  and  720, 


616  Citations  to  the  Code  of  Vibginia. 

decided  September,  1878.  There  is  a  wide  distinction  between 
domicile  and  a  residence.  To  constitute  a  domicile  two  things 
must  concur :  First,  residence ;  Second,  the  intention  to  remain 
there  for  an  unlimited  time.  Residence  is,  to  have  a  permanent 
abode  for  the  time  being  as  contradistinguished  from  a  mere 
temporary  locality  of  existence.  What  is  the  meaning  of  the 
word  residence  as  used  in  any  particular  statute  must  be  de- 
cided upon  its  particular  circumstances.  The  word  is  often 
used  to  express  a  different  meaning  according  to  the  subject- 
matter.  The  word  residence  in  the  statute  in  relation  to  at- 
tachments is  to  be  construed  as  meaning  the  act  of  abiding  or 
dwelling  in  a  place  for  some  continuance  of  time. 

While  on  the  one  hand  the  casual  or  temporary  sojourn  of  a 
person  in  the  State,  whether  on  business  or  pleasure,  does  not 
make  him  a  resident  of  the  State  within  the  meaning  of  the  at- 
tachment law,  especially  if  his  personal  domicile  is  elsewhere, 
so  on  the  other  hand  it  is  not  essential  that  he  should  come  into 
the  State  with  the  intention  to  remain  here  permanently  to  con- 
stitute him  a  resident. 

R.,  domiciled  in  Washington,  obtains  a  contract  upon  the  W. 
&  S.  Railroad  to  construct  three  sections  of  the  road,  and  he 
may  be  employed  to  build  culverts  and  bridges  in  such  time  as 
the  engineer  of  the  road  may  fix.  He  rents  out  his  house  in 
Washington,  removes  his  family  to  a  place  on  the  route  of  the 
road  and  keeps  house.  Before  the  work  is  finished  or  the  time 
for  completing  it  has  arrived,  an  attachment  is  sued  out  against 
his  effects.  Held  :  He  was  a  resident  of  the  State,  and  the  at- 
tachment quashed. 

In  the  case  of  Pilson  ( Trustee)  vs.  Busliong  et  als.,  29  Grat.,  229, 
decided  October  11,  1877,  it  was  held,  p.  240 :  To  become  citi- 
zens of  another  State,  they  must  change  their  domicile.  Resi- 
dence with  no  present  intention  of  removing  constitutes  domicile. 
Mere  change  of  place  is  not  change  of  domicile.  Mere  absence 
from  a  fixed  home,  however  long  continued,  cannot  work  the 
change.  There  must  be  the  animus  to  change  the  prior  domi- 
cile for  another.  To  constitute  a  new  domicile  two  things  must 
concur:  First,  residence  in  a  new  locality;  /Second,  the  inten- 
tion to  remain  there.  Until  the  new  domicile  is  acquired  the  old 
one  remains ;  and  whenever  a  change  of  domicile  is  alleged,  the 
burden  of  proving  it  rests  on  the  party  alleging  it.  These  prin- 
ciples are  said  to  be  axiomatic  in  the  law  on  the  subject. 

For  the  reference  to  30  Grat.,  718,  720,  see  supra,  case  of 
Long  vs.  Ryan  et  als. 

In  the  case  of  Porter  vs.  Young,  85  Va.,  49,  decided  May  17, 
1888,  it  was  held :  Under  this  section  debts  due  non-resident 
debtor  by  open  account  may  be  attached  in  the  hands  of  resi- 
dent garnishees. 


CrrATioNS  TO  the  Code  of  Virginia.  617 

In  the  case  of  Burrus,  Son  c&  Co.  vs.  Trant  <Ss  Bro.,  88  Va., 
^80,  decided  April  7,  1892,  it  was  held :  The  burden  of  proof  is 
on  the  attaching  creditors  to  show  the  existence  and  truth  of 
the  alleged  grounds  of  their  attachment. 

Section  2961. 

In  the  case  of  Barnett  vs.  Darnielle,  3  Call,  413  (2d  edition, 
358),  decided  May  16, 1803,  it  was  held:  A  magistrate's  attach- 
ment against  an  absconding  debtor  can  only  issue  from  the 
<30unty  where  he  resided  or  is  actually  found  at  the  time  of 
issuing  it. 

In  the  case  of  W.  &  D.  Kyle  &  Co.  vs.  Connelly,  3  Leigh,  719, 
■decided  May,  1832,  it  was  held :  One  member  of  a  mercantile 
house  to  which  a  debt  has  been  contracted,  but  has  not  yet 
fallen  due,  is  competent  to  make  complaint  on  oath  and  sue  out 
an  attachment  against  the  debtor  under  the  provisions  of  the 
statute. 

Though  the  statute  requires  that  such  complaint  shall  be 
made  on  oath  as  the  foundation  of  the  process,  it  does  not  re- 
quire that  the  fact  of  the  complaint,  having  been  verified  by 
oath,  shall  be  certified  by  the  justices  and  made  part  of  the 
record.  If  on  the  trial  objection  be  made  that  the  attachment 
was  made  without  complaint  verified  by  oath,  the  fact  that  the 
oath  was  administered  may  be  proved;  if  no  objection  be  made 
on  that  ground,  it  is  too  late  to  take  such  objection  in  an  ap- 
pellate court. 

In  the  case  of  Jones  <&  F(yrd  vs.  Anderson  et  als.,  7  Leigh, 
308,  decided  March,  1836.  An  attachment  against  an  abscond- 
ing debtor  is  sued  out  in  the  name  of  a  partnership  for  a  debt 
due  a  partnership ;  the  bond  taken  is  the  bond  of  F.,  one  of  the 
partners,  with  surety,  reciting  that  F.  has  obtained  the  attach- 
ment, and  conditioned  that  if  he  shall  be  cast  in  the  suit  he 
shall  pay  all  costs  and  damages  which  shall  be  recovered  against 
him.  Held :  The  bond  is  naught,  and  the  attachment  is  there- 
fore illegal  and  void. 

An  attachment  against  an  absconding  debtor  must  be  regular 
on  its  face,  and  a  defect  appearing  thereon  cannot  be  supplied 
by  averment. 

Section  2962. 

In  the  case  of  Johnson  vs.  Garland,  9  Leigh,  149,  decided 
January,  1838,  it  was  held:  The  lessor  is  not  entitled  to  an 
attachment  for  rent  not  yet  due,  before  the  commencement  of 
the  term  for  which  the  rent  is  to  be  paid. 

If  such  attachment  for  rent  not  yet  due  be  issued  before  the 
commencement  of  the  term,  and  levied  on  the  goods  of  the  les- 
see, and  the  lessee  thereupon  enter  into  a  recognizance  to  pay 
the  rent,  the  lessee  may,  notwithstanding  the  recognizance,  move 


618  Citations  to  the  Code  of  Virginia. 

the  court  to  which  process  is  returned  to  quash  the  attachment 
for  irregularity,  and  on  such  motion  the  court  ought  to  quash 
the  attachment,  and  the  recognizance  likewise,  which  was  founded 
upon  it. 

Section  2964. 

In  the  case  of  McKim  vs.  Fulton,  6  Call,  106,  decided  April, 
1806,  it  was  held :  The  endorsement  by  the  clerk  of  the  court  of 
chancery  that  the  suit  is  brought  to  attach  the  effects  of  the  ab- 
sent defendant  is  sufficient  to  restrain  the  application  of  them  to 
any  other  \ise  until  the  plaintiff's  demand  is  satisfied. 

In  the  case  of  Williamson  et  als.  vs.  Bowie  et  als.,  6  Munf., 
176,  decided  March  13,  1818,  it  was  held :  Agreeably  to  the 
practice  of  this  State,  a  subpoena  in  chancery  with  an  endorse- 
ment thereon  "to  stop  the  debts  and  effects  of  the  absent  de- 
fendants in  the  hands  of  the  defendants  within  the  State,"  men- 
tioning their  names,  to  satisfy  a  debt  due  from  the  absent  de- 
fendants to  the  plaintiff,  operates  from  the  time  of  the  service 
of  that  process  on  the  defendants  within  the  State  as  an  attach- 
ment to  stop  the  payment  by  them  of  moneys  due  from  them  to 
the  absent  defendants,  and  to  inhibit  a  transfer  thereof  from  the 
said  absent  defendants  to  other  persons. 

An  attachment  in  chancery  lies  to  secure  a  debt  payable  at  a 
subsequent  day,  or  to  relieve  the  endorser  of  a  note  which  haa 
not  become  payable  at  the  date  of  such  attachment,  which  binds 
the  property  in  the  hands  of  the  garnishee  from  the  time  of  its 
service,  so  as  to  inhibit  the  absent  defendants  making  a  trans- 
fer thereof,  even  for  the  benefit  of  a  creditor  whose  claim  is  al- 
ready due  and  payable.  A  creditor  residing  in  Maryland  may 
sue  out  an  attachment  in  chancery  in  Virginia  against  his 
debtor  residing  also  in  Maryland,  and  others  residing  in  Vir- 
ginia indebted  to,  or  having  in  their  hands  effects  of,  such  debtor. 

In  the  case  of  Moore  et  als.  vs.  Holt,  10  Grat.,  284,  decided 
July,  1853,  it  was  held :  Process  in  a  foreign  attachment  is  served 
upon  a  garnishee  having  property  of  the  absent  debtor  in  his 
hands,  and  afterwards  other  creditors  sue  out  an  attachment  at 
law  against  the  same  party  as  an  absconding  debtor,  which  is 
served  upon  the  same  garnishee ;  and  before  the  foreign  attach- 
ment is  ready  for  hearing,  they  obtain  judgment  and  an  order 
for  the  sale  of  the  property  in  the  hands  of  the  garnishee.  The 
plaintiff  in  the  foreign  attachment  may  amend  his  bill  and  en- 
join the  sale. 

It  is  not  necessary  that  a  plaintiff  in  a  foreign  attachment 
shall  file  with  the  clerk  an  affidavit  of  the  non-residence  of 
his  debtor  before  the  process  is  issued,  in  order  to  constitute 
with  it,  with  the  endorsement  in  the  nature  of  an  attachment,  a 
lien  when  served. 

The  endorsement  in  the  nature  of  an  attachment  does  not 


Citations  to  the  Code  of  ViRomiA.  619 

authorize  the  officer  serving  it  to  take  the  effects  out  of  the 
hands  of  the  garnishee  or  to  require  him  to  give  security  to  have 
them  forthcoming,  nor  does  it  operate  as  an  injunction,  so  as 
to  subject  a  party  to  the  penalty  of  a  contempt  for  disobedience. 
If  the  plaintiff  desires  such  an  order  of  the  court  as  will  effect 
these  purposes,  he  must  file  the  affidavit  according  to  the  terms 
of  the  act.  It  is  not  necessary  to  state  in  the  endorsement  on 
the  subpoena  the  character  or  amount  of  the  claims  for  which 
the  attachment  is  issued.     This  is  to  be  done  in  the  bill. 

The  decree  states  that  the  order  of  publication  against  the 
absent  defendant  had  been  duly  published.  It  is  to  be  taken  in 
an  appellate  court  that  everything  required  by  the  statute  was 
done. 

A  guarantor  of  a  debt  may  maintain  a  foreign  attachment 
against  his  principal  before  he  has  paid  the  debt. 

In  the  case  of  Cirode  vs.  Buchanan! s  Administrators,  22  Grat., 
205,  decided  June  12,  1872.  In  February,  1867,  B.,  adminis- 
trator de  bonis  7ion  of  J.,  files  his  bill,  in  which  he  sets  out  a 
money  decree  of  an  Alabama  court  against  S. :  that  S.  is  a  non- 
resident of  the  State;  that  he  owns  land  here,  which  he  de- 
scribes, and  asks  that  it  may  be  sold  for  the  payment  of  his 
debt ;  but  he  does  not  pray  for  an  attachment,  nor  is  an  attach- 
ment sued  out,  nor  an  endorsement  on  the  process  of  the  object 
of  the  suit.  In  July,  1868,  S.  is  declared  a  bankrupt  in  Ten- 
nessee, and  his  assignee,  C,  makes  himself  a  party  to  the  suit, 
and  claims  the  land  or  its  proceeds,  it  having  been  sold.  Held : 
The  bill  stating  a  good  cause  for  an  attachment  suit,  the  affi- 
davit required  by  the  statute  may  be  made  at  any  time  before 
another  person  obtains  a  right,  and  the  endorsement  on  the 
subp<x.na  is  not  necessary  to  render  his  attachment  valid. 

If  an  endorsement  was  necessary,  the  order  of  publication 
was  in  the  nature  of  process,  and  B.  is  entitled*  to  the  proceeds 
of  the  property  as  against  C,  the  assignee  in  bankruptcy. 

In  the  case  of  Batcheleder  et  als.  vs.  White,  80  Va.,  103,  de- 
cided January  15,  1885,  it  was  held :  Neither  under  Section  2, 
Chapter  175,  nor  under  Section  11,  Chapter  148,  Code  1873, 
can  a  suit  in  the  nature  of  a  foreign  attachment  be  maintained, 
unless  the  claim  asserted  be  actually  due.  Unless  the  bill  avers 
that  a  debt  is  due  the  plaintiff  from  one  who  is  a  non-resident 
of  this  State,  and  who  has  estate  and  effects  in  this  State,  it  is 
demurrable. 

In  the  case  of  Culbertson's  Hepreseiitatives  vs.  Stevens  et  als.,  82 
Va.,  406,  decided  September  23,  1886,  it  was  held:  The  levy  of 
the  attachment,  as  shown  by  the  officer's  return  on  the  non- 
resident defendant's  property,  is  the  foundation  of  the  suit.  If 
the  property  attached  be  not  the  defendant's  property,  the  court 
is  without  jurisdiction. 


620  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Wtngo,  Ellett  (&  Crump  vs.  Purdy  c&  Co.,  87 
Va.,  472,  decided  March  5,  1891,  it  was  held:  Attachments 
cannot  be  maintained  on  undue  debts,  on  the  ground  that  the 
debtors  are  non-residents,  unless  they  have  disposed  or  are  about 
to  dispose,  fraudulently,  of  their  effects.  And  upon  abatement 
the  court  cannot  retain  the  suit  and  grant  relief,  but  must  dis- 
miss the  bill. 

Section  2967. 

In  the  case  of  Clark  vs.  Ward  et  als.,  12  Grat.,  440,  decided 
May  22, 1855,  it  was  held :  A  creditor,  secured  by  a  deed  of  trust 
with  others,  sues  out  a  foreign  attachment  against  his  debtor, 
und  seeks  to  subject  the  property  conveyed  in  the  deed  to  the 
payment  of  his  debt,  in  preference  to  the  other  creditors  secured 
by  the  deed,  but  he  fails.  This  does  not  preclude  him  from 
his  right  to  claim  under  the  deed  his  ratable  proportion  of  the 
trust  fund. 

The  endorsement  on  the  process  of  attachment  not  mention- 
ing or  describing  real  estate,  the  attachment  does  not  operate 
upon  any  such  estate. 

The  attachment  is  served  upon  trustees  in  a  deed  of  trust  for 
the  payment  of  certain  debts,  and  among  them  are  the  debts 
due  to  the  plaintiff  in  the  attachment.  There  could  therefore 
be  no  surplus  in  the  hands  of  the  trustees  until  the  plaintiff's 
debts  were  paid,  and  consequently  there  can  be  no  surplus  in 
their  hands  liable  to  his  attachment. 

The  creditor  having  stated  in  his  bill  and  having  proved  that 
his  debtor  had  assigned  to  him  certain  railroad  stocks  and  a 
bond  secured  by  a  deed  of  trust  as  security  for  one  of  his  debts, 
and  the  deed  conveying  all  the  debtor's  stocks  and  debts  to  the 
trustees,  though  they  disclaimed  any  right  to  or  possession  of 
the  stocks  and  bond  assigned  to  the  plaintiff,  they  are  intrusted 
for  the  creditors'  to  see  that  the  fund  assigned  to  the  plaintiff 
is  properly  applied  to  the  satisfaction  of  his  debt ;  and,  there- 
fore, though  there  is  nothing  in  their  hands  upon  which  the  at- 
tachment can  operate,  the  bill  should  not  be  dismissed,  but  the 
<;ourt  should  proceed  to  have  the  assigned  property  properly 
disposed  of  and  applied,  and  to  give  the  plaintiff  relief  according 
to  his  rights  under  the  deed. 

See  the  case  of  Pulliam,  etc.,  vs.  Aler^  15  Grat.,  54,  ante.  Sec- 
tion 2959. 

In  the  case  of  Cirode  vs.  Buchanan's  Adininintrators,  22  Grat., 
205,  decided  June  12,  1872,  it  was  held,  p.  217 :  In  order  to 
constitute  an  attachment  lien  upon  any  property  there  must  be 
a  claim  in  some  form  to  subject  the  property  to  the  payment  of 
the  debt  demanded  in  the  action  or  suit.  If  there  be  no  such 
claim  in  the  pleadings  in  the  action  or  suit  itself,  then  an  attach- 
ment must  be  issued,  which  may  be  levied  upon  any  estate,  real 


CiTATIONa  TO  THE  CODE  OF  VIRGINIA.  621 

or  personal,  of  the  defendant,  or  so  much  thereof  as  is  sufficient 
to  pay  the  amount  for  which  it  issues,  and  the  plaintiff  shall 
have  a  lien  from  the  time  of  the  levying  of  such  attachment  as 
aforesaid. 

In  the  case  of  CJiesapeake  &  Ohio  Railroad  Company  vs. 
Paine  cfc  Co.,  29  Grat.,  502,  decided  November,  1877,  it  was 
held  :  The  shares  of  a  stockholder  in  a  joint  stock  company, 
incorporated  by  and  conducting  its  operations,  in  whole  or  in 
part,  in  this  estate,  are  such  estate  as  is  liable  to  be  attached  in  a 
proceeding  instituted  for  that  purpose  by  one  of  the  creditors 
of  such  stockholder  and  such  estate,  may  properly  be  consid- 
ered, for  the  purpose  of  such  proceeding,  as  in  the  possession  of 
the  corporation  in  which  the  shares  are  held,  and  such  corpora- 
tion may  properly  be  summoned  as  a  garnishee  in  the  case. 
Of  such  a  proceeding  a  court  of  law  has  jurisdiction  as  weU  as 
a  court  of  equity. 

Where  along  with  the  answer  of  the  corporation  in  such  pro- 
ceeding an  affidavit  is  filed,  alleging  that  some  third  person 
claims  the  said  stock,  and  that  the  corporation  claims  no  interest 
therein,  nor  colludes  with  such  claimant,  but  is  ready  to  dispose 
of  the  stock  as  the  court  shall  direct,  the  court  should  require 
such  third  person  to  appear  and  state  the  nature  of  his  claim, 
and  maintain  or  relinquish  the  same. 

If,  in  such  proceeding,  the  stock  should  appear  to  be  liable 
to  the  lien  of  the  attachment,  it  ought  to  be  sold  for  the  satisfac- 
tion of  the  same  under  an  order  of  the  court  made  for  that  pur- 
pose in  the  attachment  proceeding,  but  it  is  error  for  the  court 
to  render  a  judgment  against  the  gamisheed  corporation  for  the 
value  of  the  stock,  unless  it  appears  that  the  lien  of  the  attach- 
ing creditor  on  the  stock  was  lost  by  the  act  of  the  corpora- 
tion. 

See  the  case  of  CulhertsonHs  Representatives  vs.  Stevens,  82 
Va.,  406,  ante.  Section  2964. 

In  the  case  of  Don'ler  et  als.  vs.  Masters  et  als.,  83  Va.,  459, 
decided  June,  1887,  it  was  held :  Attachment  may  be  levied  on 
any  visible  or  tangible  effects  of  non-resident  debtor  in  his 
actual  or  constructive  possession,  in  the  common  law  mode,  as 
in  the  case  of  an  execution.  If  those  effects,  whether  visible 
and  tangible  or  not,  are  in  a  third  person's  possession,  they  may 
be  sufficiently  levied  on  by  delivering  a  copy  of  the  attachment 
to  such  person ;  but  they  cannot  be  seized  and  taken  possession 
of,  unless  the  creditor  has  given  a  bond  with  security  in  a  pen- 
alty at  least  double  the  amount  sued  for,  the  giving  of  which 
bond  is  optional  with  the  creditor,  who  acquires  a  lien  by  the 
levy  without  the  seizure. 

To  constitute  an  effectual  levy  it  is  not  essential  that  an  officer 
make  an  actual  seizure.     If  he  have  the  goods  in  his  actual 


622  Citations  TO  THE  Code  OF  Virginia. 

view  and  power,  and  note  on  the  writ  the  fact  of  his  levy  there- 
on, this  will  in  general  suffice. 

In  the  case  of  Bobertson  vs.  Hoge,  83  Va.,  124,  decided  April, 
1887,  it  was  held :  Return  of  officer  must  show  sufficient  levy 
of  the  attachment,  otherwise  the  court  has  no  jurisdiction. 
The  return  must  show  that  the  attachment  was  levied  upon  the 
property  as  the  property  of  the  defendant,  in  order  to  make  a 
valid  levy  on  real  estate.  And  in  attachment  proceedings  in 
eqiiity  against  a  non-resident,  under  a  return,  the  officer's  re- 
turn, that  he  "served  the  summons  on by  delivering 

a  copy  to  him,"  and  that  "he  resided  on  the  premises  within 
described,"  does  not  show  a  valid  levy. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  502. 

Section  2968. 

In  the  case  of  Smith  vs.  Pearce,  6  Munf.,  585,  decided  April 
1, 1820,  it  was  held :  If  the  claim  of  a  plaintiff  in  an  attachment 
against  an  absconding  debtor  be  stated  as  for  a  certain  sum 
due  by  negotiable  note,  with  interest  from  the  day  when  such 
note  should  have  been  paid,  and  the  bond  for  prosecuting  the 
attachment  describe  it  as  sued  out  for  the  sum  of  money  men- 
tioned therein,  saying  nothing  of  interest,  the  variance  is  not 
material. 

Special  bail  to  replevy  the  attachments  and  effects,  and  a 
plea  to  the  action,  ought  to  be  received  in  behalf  of  the  defend- 
ant upon  an  attachment  issued  against  him  as  an  absconding 
debtor,  notwithstanding  he  did  not,  when  solemnly  called,  ap- 
pear in  person,  or  by  attorney ;  such  bail  and  plea  being  offered 
at  the  term  to  which  the  attachment  is  returned  executed,  and 
before  the  judgment  upon  it  is  pronounced. 

In  the  case  of  Dickinson.  {Administrator,  etc.)  vs.  McCraw,  4 
Hand.,  158,  decided  March,  1826,  it  was  held :  In  an  action  on 
an  attachment  bond,  by  which  the  obligor  was  bound  to  pay  all 
costs  and  damages  which  may  accrue  to  the  obligee  in  conse- 
quence of  suing  out  the  attachment,  it  is  not  necessary  that 
they  should  be  previously  assessed  in  some  other  action  to  jus- 
tify an  action  on  the  bond.  In  an  action  on  an  attachment 
bond  it  is  not  sufficient  to  allege  in  the  declaration  that  the  de- 
fendant "  did  not  pay  all  such  costs  and  damages  as  have  ac- 
crued," etc. ;  but  it  must  be  expressly  averred  that  costs  and 
damages  had  been  actually  sustained. 

See  the  case  of  Jones  c&  Ford  vs.  Anderson,  7  Leigh,  308, 
cited  ante.  Section  2961. 

In  the  case  of  Davis  vs.  Com,monioealth,  for  Leon,  13  Grat., 
139,  decided  February  29, 1856,  it  was  held:  The  bond  author- 
ized by  the  act  in  relation  to  attachments  is  not  a  general  in- 
demnifying bond;  but  where  the  attachment  issues  against  the 


Citations  to  the  Code  of  Virginia.  623 

effects  of  the  defendant  generally,  he  alone  can  sue  upon  the 
bond ;  and  where  the  attachment  is  issued  against  specific  pro- 
perty, only  the  defendant,  or  the  owner  of  such  property,  can 
sue  upon  the  bond.  Where  the  attachment  is  issued  against 
the  effects  of  the  defendant  generally,  and  is  levied  upon  the 
property  of  a  third  person,  such  third  person  has  no  remedy 
upon  the  attachment  bond. 

See  the  case  of  Dorrier  vs.  Masters,  83  Va.,  459,  cited  ante, 
Section  2967. 

In  the  case  of  Kenefects  vs.  Caulfield,  88  Ya.,  122,  decided 
June  25,  1891,  it  was  held:  Where  the  sheriff  is  not  directed  to 
take  possession  of  the  property  attached,  no  bond  is  required. 

Section  2969. 

In  the  case  of  O^fftendinger  vs.  Ford  et  als.,  86  Va.,  917,  de- 
cided May  8,  1890,  it  was  held :  The  return  must  show  that  the 
attachment  was  levied  on  the  property  of  the  defendant,  in  or- 
der to  make  it  valid. 

Section  2971. 

In  the  case  of  TazewelVs  Executor  vs.  Barrett  &  Co.,  4  H.  & 
M.,  259,  decided  October,  1809,  it  was  held:  After  a  hona  fde 
assignment  of  a  bond,  and  notice  thereof  to  the  obligor,  he  can- 
not be  restrained  by  an  attachment  in  chancery  at  the  suit  of  a 
creditor  of  the  obligor  from  paying  the  debt  to  the  assignee, 
notwithstanding  the  s^ibpcena,  with  the  usual  endorsement  by  the 
clerk,  was  served  upon  him  before  he  received  such  notice,  and 
afterwards  (but  before  he  answered  the  bill)  the  court  made  an 
order  restraining  him  from  paying  the  debt  which  he  owed  the 
defendant.  Therefore,  in  this  case,  the  obligor  (though  pre- 
viously served  with  the  subpoena),  having  received  notice  of  the 
assignment  shortly  after  the  bond  became  payable,  and  failing 
for  nearly  six  years  to  answer  the  bill,  which  was  filed  before 
the  notice  was  given,  was  not  allowed  (in  a  suit  against  him  by 
the  assignee)  any  deduction  of  interest  between  the  day  when 
the  bond  became  payable  and  that  when  the  restraining  order 
was  set  aside. 

In  the  case  of  Wilson  vs.  Davisson,  5  Munf.,  178,  decided  Oc- 
tober 16,  1816,  it  was  held  :  In  debt  by  the  assignee  of  a  bond, 
it  is  not  sufficient  plea  that  before  notice  of  the  assignment  the 
effects  of  the  assignor  were  attached  in  the  defendant's  hands, 
and  a  decree  entered  that  he  should  pay  the  debt  to  the  attach- 
ing creditor,  etc.,  and  that  accordingly  he  had  made  such  pay- 
ment, it  appearing  by  the  pleading  that  the  bond  was  assigned 
before  the  attachment  was  instituted  and  suit  brought  upon  it 
by  the  assignee  before  payment  was  made. 

In  the  case  of  Erskiyi  db  Eichelberger  vs.  Staley  et  als.,  12 
Leigh,  406,  decided  November,  1841.     Creditors  of  an  absent 


624  Citations  to  the  Code  of  Virginia. 

debtor  sue  out  a  foreign  attachment  in  chancery  against  him 
and  a  home  defendant,  having  in  his  possession  specific  goods 
of  the  absent  debtor,  as  well  as  bonds,  notes,  etc.,  to  collect  for 
him  as  his  agent,  and  this  process  is  served  on  the  garnishee ; 
other  creditors  of  the  same  debtor,  having  brought  an  action  at 
law  against  him,  sue  out  his  attachment  against  his  estate  to 
force  his  appearance,  and  this  attachment,  after  the  foreign  at- 
tachment had  been  served  on  the  garnishee,  is  levied  on  the 
same  specific  goods  which  were  in  the  garnishee's  hands  at  the 
time  the  foreign  attachment  was  served  on  him ;  judgment  being 
recovered  in  the  action  at  law,  pending  the  foreign  attachment 
in  chancery,  the  court  of  law  orders  a  sale  of  the  specified 
goods  on  which  the  attachment  at  law  was  levied;  and  the 
creditors  in  the  action  at  law  being  about  to  have  a  sale,  under 
the  order  of  a  court  of  law,  of  the  goods  on  which  their  attach- 
ment was  levied,  the  creditors  in  the  foreign  attachment  in  chan- 
cery obtain  an  injunction  to  inhibit  that  sale,  claiming  a  prior 
lien  on  the  goods  by  virtue  of  their  attachment  previously  served 
on  the  garnishee.  Held :  Upon  the  construction  of  the  statute, 
1  Bev.  Code,  Chapter  123 : 

1.  That  the  creditors  in  the  foreign  attachment,  by  the  service 
thereof  on  the  garnishee  and  from  the  date  of  such  service, 
acquired  a  lien  on  the  effects  of  the  absent  debtor  in  the  gar- 
nishee's hands ;  and  of  this  lien  neither  the  absent  debtor  nor 
the  garnishee,  by  any  act  of  theirs,  nor  any  third  person  by  an 
attachment  or  other  process  of  law  subsequently  levied,  could 
deprive  them. 

2.  Therefore  the  creditors  in  the  foreign  attachment,  if  th«y 
shall  get  a  decree,  will  be  entitled  to  priority  for  satisfaction 
thereof  out  of  the  attached  effects  over  the  creditors  claiming 
under  the  attachment  at  law  subsequently  levied. 

3.  And  the  remedy  by  way  of  bill  of  injunction,  to  which  the 
creditors  in  the  foreign  attachment  had  recourse,  was  the  proper 
remedy  to  protect  their  rights.  In  the  proceeding  by  way  of 
attachment  in  chancery,  a  suhpoena  against  the  absent  debtor 
and  the  garnishee,  with  a  restraining  order  endorsed  by  the 
clerk  served  on  the  garnishee,  is,  according  to  the  settled  prac- 
tice, as  effectual  to  attach  the  effects  of  the  absent  debtor  in  the 
garnishee's  hands  as  a  formal  order  of  the  court  to  the  same 
purpose  would  be. 

In  the  case  of  Jennings  et  als  vs.  Montague,  2  Grat.,  350,  de- 
cided October,  1845,  it  was  held :  The  statute  does  not  authorize 
the  court  to  interfere  with  or  defeat  the  vested  rights  of  cred- 
itors, or  hona  fide  alienees  or  incumbrancers,  which  attached 
upon  the  property  prior  to  the  institution  of  such  proceedings 
for  divorce,  and  when  the  property  was  the  absolute  property 
of  the  husband. 


Citations  to  the  Code  of  Virginia.  625 

An  attachment  against  the  effects  of  the  husband  as  an  ab- 
sconding debtor,  levied  before  the  institution  of  a  suit  by  the 
wife  for  a  divorce,  entitles  the  attaching  creditors  to  be  satisfied 
out  of  the  attached  effects,  in  preference  to  the  claim  of  the  wife. 

In  the  case  of  Riclieson  vs.  Riclieson  et  als.,  2  Grat.,  497,  de- 
cided January,  1846.  In  May,  1835,  a  suhpcena  in  chancery  is 
sued  out  against  an  absent  debtor  and  home  defendants,  return- 
able to  July  rules.  The  siihpmna  is  returned  executed  against 
the  home  defendants,  but  the  date  of  its  service  upon  them  is 
not  stated.  After  the  issue  of  the  suhpcena,  but  before  the  re- 
turn day  thereof,  the  debtor  executes  a  deed  to  secure  certain 
creditors,  which  is  duly  recorded.  Held :  The  attachment  is  to 
be  postponed  to  the  deed. 

The  bill  filed  by  the  attaching  creditor  sets  up  a  claim  as  ven- 
dor of  a  tract  of  land  conveyed  in  the  deed  for  the  purchase- 
money.     Held :  The  lien  of  the  deed  has  preference. 

In  the  case  of  Caperton  vs.  McCorkle  c&  Adams,  5  Grat.,  177, 
decided  July,  1848,  it  was  held :  Two  attachments  against  an 
absconding  debtor  are  levied  on  the  same  property.  The  first 
levied  is  quashed  by  the  county  court,  but  upon  appeal  this 
judgment  is  reversed.  Pending  the  appeal  an  order  is  made  in 
the  second  attachment  case  for  a  sale  of  the  property,  and  it  is 
sold,  and  the  proceeds  are  paid  over  to  the  creditor  in  the 
second  attachment. 

An  action  for  money  had  and  received  will  lie  by  the  first 
attaching  creditor  against  the  creditor  in  the  second  attachment. 

In  the  case  of  Fariaerii  Bank  vs.  Day  et  als.,  6  Grat.,  360, 
decided  October,  1849,  it  was  held :  Among  attaching  creditors 
proceeding  by  foreign  attachment,  the  creditor  whose  sifhpcena 
is  first  sued  out  and  served  is  entitled  to  priority  of  satisfaction. 

But  the  attachment  only  operates  as  a  lien  upon  the  debts 
and  effects  of  the  absent  debtor  in  the  hands  of  the  home  de- 
fendants against  whom  and  upon  whom  it  is  served. 

In  the  case  of  Ilaffey,  etc.,  vs.  Miller',  etc.,  6  Grat.,  454,  de- 
cided October,  1849.  In  a  foreign  attachment  the  defendant 
holds  lands  of  the  absent  debtor  upon  a  lease.  Held :  The  ser- 
vice of  the  attachment  upon  the  home  defendant  only  binds  the 
rent  due  at  the  time  the  attachment  was  served,  and  does  not 
bind  the  rents  accruing  subsequently. 

In  the  case  of  Yance  vs.  McLaughlin,  8  Grat.,  289,  decided 
October,  1851,  it  was  held:  A  wife's  interest  as  legatee  in  her 
father's  estate  in  the  hands  of  the  executor  may  be  subjected 
by  the  creditor  of  her  husband  by  a  proceeding  by  foreign  at- 
tachment when  the  husband  resides  out  of  the  State. 

Though  the  service  of  the  process  upon  the  executor  creates 
a  lien  upon  the  wife's  interest  in  favor  of  the  creditor,  yet  if  tho 
husband  dies  pending  the  proceedings,  leaving  his  wife  surviv- 

40 


626  Citations  to  the  Code  of  Vibginia. 

ing  him,  the  lien  of  the  creditor  is  defeated,  and  the  property  be- 
longs to  his  wife. 

See  the  case  of  Schofield  vs.  Cox  et  als.,  8  Grat.,  533,  cited 
post^  Section  2982. 

In  the  case  of  Jiollo  {Assignee)  vs.  Andes  Insurance  Com- 
pany, 23  Grat.,  509,  decided  June,  1873,  it  was  held :  The  trea- 
surer of  the  State,  who  holds  bonds  of  a  foreign  insurance  com- 
pany doing  business  in  this  State  under  the  act  of  February  3, 
1866,  as  amended  by  the  act  of  March  3,  1871,  is  not  liable  to 
be  summoned  as  garnishee  by  a  foreign  creditor  of  the  insur- 
ance company. 

A  pubHc  officer  of  the  State  cannot  be  held  liable  by  attach- 
ment at  the  suit  of  an  individual  for  funds  in  his  hands  clothed 
with  a  trust  under  the  authority  of  a  public  law. 

Under  the  act  of  February  3, 1866,  when  a  foreign  insurance 
company  shall  cease  to  do  business  in  the  State,  and  its  liabili- 
ties, fixed  or  contingent,  to  citizens  of  the  State  shall  have  been 
satisfied  or  terminated,  the  treasurer  is  authorized  to  deliver 
such  company  the  bonds  and  other  securities  deposited  with 
him.  Though  the  company  has  ceased  business  in  the  State, 
and  its  liabilities  to  citizens  of  the  State  have  been  satisfied  or 
terminated,  the  bonds  in  the  hands  of  the  treasurer  cannot  be 
attached  by  a  foreign  creditor,  but  they  must  be  delivered  by 
the  treasurer  to  the  company. 

In  the  case  of  Gregg  vs.  Sloan  et  als.,  76  Va.,  497. 

Trust  Deeds. — Attachments. — Priorities. — Debtors  in  North 
Carolina  grant  all  their  property,  including  choses  in  action,  due 
from  their  debtors  in  Virginia,  and  secured  on  land  here.  After 
recordation  of  deed  in  North  Carolina,  but  before  its  recorda- 
tion in  Virginia,  a  creditor  having  in  Virginia  attached  the 
choses  and  the  land  securing  them,  in  contest  for  priority, 
held :  The  deed,  though  unrecorded  in  Virginia,  being  prior  to 
the  attachment,  prevails  over  it. 

In  the  case  of  Blckle  et  als.  vs.  ChrismavH s  Administratrix  et 
als.,  76  Va.,  678,  decided  September  28,  1882,  it  was  held,  pp. 
691-'92 :  It  is  well  settled  that  process  of  garnishment  at  law 
will  not  lie  against  personal  representative. 

Section  2975. 
The  reference  here  to  3  Leigh,  719,  is  an  error. 

Section  2976. 
In  the  case  of  Templeman  vs.  Fauntleroy,  3  Rand.,  434,  de- 
cided June,  1825,  it  was  held:  Where  a  foreign  attachment  is 
sued  out  against  an  absent  debtor  and  a  resident  garnishee,  in 
a  case  equitable  in  its  nature,  it  is  competent  to  the  court  of 
chancery  to  decree  between  the  debtor  and  the  garnishee  what 
may  be  due  from  the  latter  to  the  former,  after  satisfying  the 


Citations  to  the  Code  of  Virginia.  627 

claims  of  the  plaintiff.  But  the  evidence  in  such  case  must  arise 
from  the  pleadings  and  proofs  between  plaintiff  and  defendants. 

Although  a  defendant  is  restrained  from  paying  money  by  at- 
tachment, he  ought,  nevertheless,  to  pay  interest  during  the  time 
he  was  so  restrained  if  he  continues  to  hold  the  money. 

In  the  case  of  Kelly  vs.  Linkerhoger,  8  Grat.,  104,  decided 
July,  1851,  it  was  held:  In  a  proceeding  by  foreign  attachment 
the  home  defendant  denies  that  he  has  any  effects  of  the  ab- 
sent debtor  in  his  hands.  He  says  that  a  tract  of  land  which 
had  belonged  to  the  absent  debtor  had  been  purchased  by  him- 
self and  been  paid  for;  and  he  in  fact  held  the  receipt  of  the 
absent  debtor  for  the  amount  of  the  purchase-money.  As,  how- 
ever, he  did  not  pretend  he  had  paid  the  amount  in  money,  and 
as  the  accounts  which  he  endeavored  to  establish  were  not 
proved  to  the  satisfaction  of  the  commissioner  and  the  court, 
the  land  was  held  liable. 

In  such  case,  upon  appeal  from  an  interlocutory  decree  for 
the  sale  of  the  land,  the  appellate  court  will  not  reverse  the  de- 
cree because  the  court  did  not  decree  against  the  absent  debtor, 
or  direct  the  giving  security  as  provided  by  law  in  behalf  of 
absent  debtors.     The  final  decree  may  provide  for  these  things. 

In  the  case  of  B.  <&  0.  R.  R.  Co.  vs.  Gallahue's  Administra- 
tors, 14  Grat.,  563,  decided  August  28,  1858,  it  was  held :  The 
estimates  of  work  done  by  a  contractor  for  a  railroad  company 
are  made  up  to  the  twentieth  of  each  month,  when  they  are  con- 
sidered due,  though  not  paid  for  some  days  afterward.  As  the 
price  of  the  work  done  by  the  contractor  after  the  twentieth  may 
be  forfeited  to  the  company  for  several  causes  before  the 
twentieth  of  the  next  month,  no  debt  is  due  from  the  company  to 
the  contractor  until  the  twentieth  arrives,  and  therefore,  an  attach- 
ment being  served  on  the  company  on  the  fourteenth  day  of  the 
month,  there  is  nothing  then  in  its  hands  due  to  the  contractor 
which  may  be  attached,  though  in  fact  no  forfeiture  occurs,  and 
on  the  following  twentieth  of  the  month  the  amount  of  the  esti- 
mate may  be  due. 

See  the  case  of  Pulliarriy  etc.,  vs.  Ahr,  15  Grat.,  54,  ante^  Sec- 
tion 2959. 

See  the  case  of  C.  c&  0.  R.  R.  Co.  vs.  Paine  <&  Co.,  29  Grat., 
502,  cited  ante,  Section  2967. 

In  the  case  of  WUhe7's  vs.  Puller  et  ah.,  30  Grat.,  547,  decid- 
ed August,  1878,  it  was  held:  An  attaching  creditor  can  have 
no  judgment  against  a  garnishee  until  he  has  first  established 
his  claim  against  his  debtor.  The  county  court  has  no  juris- 
diction, at  a  monthly  term  of  the  court,  to  render  a  judgment  in 
favor  of  an  attaching  creditor  against  his  debtor.  Such  a  judg- 
ment is  not  only  voidable,  but  it  is  absolutely  void,  and  cannot 
be  the  foundation  for  any  subsequent  proceeding.     A  county 


628  Citations  to  the  Code  of  Virginia. 

court  may,  at  its  montlily  term,  provide  for  the  preservation-  of 
attached  effects;  and,  a  garnishee  having  admitted  his  indebt- 
edness to  the  debtor,  the  court  may  order  him  to  pay  his  debt 
to  a  receiver  appointed  by  the  court ;  and  a  payment  to  the  re- 
ceiver by  the  garnishee  is  a  vahd  payment  and  a  discharge  of 
his  indebtedness  as  to  the  attaching  creditor. 

For  the  reference  to  76  Va.,  678-691-92,  see  the  case  of 
Bickle  et  als.  vs.  Christmari  s  Administratrix,  cited  ante,  Section 
2971. 

Section  2979. 

In  the  case  of  Petty  vs.  The  Frick  Company,  86  Va.,  501,  de- 
cided February  13,  1890,  it  was  held :  Where,  before  an  attach- 
ment was  returned  ''executed,"  an  order  of  publication  was 
made,  and  the  order  was  not  posted  by  the  clerk  at  the  front 
door  of  the  courthouse  on  the  first  day  of  the  court  next  after 
it  was  entered,  the  attachment  should  be  abated. 

Section  2981. 

In  the  case  of  Mantz  vs.  Hendley,  2  H.  &  M.,  308,  decided 
April  16,  1808,  it  was  held :  An  attachment  irregularly  issued 
ought  to  be  quashed  ex  officio  by  the  court  to  which  it  is  re- 
turned, though  bail  be  not  given,  nor  any  plea  filed,  by  the  de- 
fendant; and,  in  like  manner,  the  court  ought  to  quash  it  on 
error  in  arrest  of  judgment  after  pleading  and  a  verdict  for  the 
plaintiff.  A  plea  in  abatement  to  an  attachment  ought  not  to 
conclude  with  praying  judgment,  if  the  plaintiff  ought  to  have 
and  maintain  his  attachment  and  action,  but  only  that  the  at- 
tachment be  quashed. 

A  general  demurrer  to  a  plea  in  abatement  ought  to  be  sus- 
tained, though  the  plea  be  defective  in  form  only.  The  plea 
that  the  defendant  never  absconded  is  a  plea  in  abatement. 

In  the  case  of  Jones  <&  Ford  vs.  Anderson  and  Another,  7 
Leigh,  308,  decided  March,  1836,  it  was  held :  An  attachment 
against  an  absconding  debtor  must  be  regular  on  its  face,  and 
a  defect  appearing  thereon  cannot  be  supplied  by  averment. 

See  the  case  of  Johnson  vs.  Garland,  9  Leigh,  149,  cited  ayite. 
Section  2962. 

In  the  case  of  Claiiin  <&  Co.  vs.  Steenhack  (&  Co.,  18  Grat., 
842,  decided  June,  1868,  it  was  held:  "Where  an  attachment 
has  been  sued  out  under  Section  2  of  Chapter  151  of  the  Code, 
edition  of  1860,  in  a  suit  pending  in  a  county  or  corporation 
court,  though  the  defendant  has  given  a  forthcoming  bond,  the 
court  has  jurisdiction  at  a  monthly  term  of  the  court  to  abate 
the  attachment.  On  a  motion  to  abate  an  attachment  on  the 
ground  that  it  was  issued  on  false  suggestions  and  without  suf- 
ficient cause,  the  plaintiff  decHning  to  express  any  wish  for  a 
jury,  and  the  defendant  expressing  a  wish  that  a  jury  might  be 


Citations  to  the  Code  op  Vikginia.  629 

■dispetised  with,  and  that  the  court  should  hear  and  decide  the 
case,  the  court  should  hear  and  decide  it  without  a  jury. 

Though  in  an  action  for  maliciously  suing  out  an  attachment 
the  plaintiff  cannot  recover  if  it  appears  that  the  defendant,  in 
suing  out  the  attachment,  acted  hona  fide  and  upon  such  appar- 
■ent  grounds  as  would  justify  him  in  believing  that  the  facts  re- 
ally existed  which  would  authorize  its  issue,  yet  upon  a  motion 
under  Section  22,  Chapter  151,  of  the  Code,  to  abate  the  attach- 
ment on  the  ground  that  it  has  been  issued  on  false  suggestions 
or  without  sufficient  cause,  the  question  is,  whether  upon  all 
the  evidence  there  was  reasonable  ground  or  probable  cause  to 
believe  that  the  defendant  was  doing  the  act  which  would  au- 
thorize the  attachment,  and  not  whether  the  facts  as  they  ap- 
peared to  the  affiant,  though  only  a  small  part  of  the  facts  of 
the  case,  afforded  him  reasonable  ground  for  such  a  belief. 

In  the  case  of  Wright  vs.  Ramho,  21  Grat.,  158,  decided 
June,  1871,  it  was  held :  Upon  a  motion  by  the  defendant  to 
abate  an  attachment  which  had  been  sued  out  against  his 
property  by  the  plaintiff,  the  onus  is  on  the  plaintiff  to  show 
that  the  attachment  was  issued  on  sufficient  cause,  and  he  may 
therefore  be  required  to  introduce  his  evidence  first. 

Where  a  case  is  heard  by  the  court  without  a  jury,  an  appel- 
late court  will  not  reverse  the  judgment,  though  the  court  be- 
low may  have  erred  in  requiring  the  plaintiff  to  introduce  his 
evidence  first.  In  such  case  it  is  a  matter  of  perfect  indiffer- 
ence in  what  order  the  evidence  is  heard. 

Upon  a  motion  by  the  defendant  to  abate  an  attachment 
which  has  been  sued  out  against  his  property  by  the  plaintiff, 
the  admissions  and  declarations  of  the  wife  of  the  defendant 
are  not  admissible  in  evidence  for  the  plaintiff  to  prove  the  in- 
tention of  the  defendant  to  move  with  his  property  from  the 
State,  unless  they  were  a  part  of  the  res  gestoe  of  an  act  which 
was  evidence  and  which  they  might  reasonably  tend  to  explain. 
Upon  such  a  motion  the  defendant's  intention  and  declarations 
as  to  leaving  the  State,  after  the  date  of  the  attachment,  are  not 
admissible  as  evidence. 

In  the  case  of  Suhlett  cS;  Cary  V3.  Wood,  76  Va.,  318. 

1.  Attachment. — Grounds. — This  remedy  is  justified,  not  by 
the  belief  of  the  affiant,  however  honestly  entertained  upon 
reasonable  grounds,  that  the  fact  sworn  to  in  the  affidavit  exists, 
but  by  the  existence  of  that  fact. 

2.  Idem. — Onus  jprohandi  that  attachment  was  issued  on  suf- 
ficient cause  rests  on  the  plaintiff,  and  he  should  introduce  his 
•evidence  first  when  defendant  moves  an  abatement. 

In  the  case  of  Dunlap  vs.  Dillard  &  McCorkle,  etc.,  77  Va., 
847,  decided  October  18,  1883,  it  was  held :  The  judgment  in 
vacation,  under  said  Section  6,  refusing  to  quash  or  dismiss  the 


630  Citations  to  the  Code  of  Virginia. 

attachment,  is  not  final,  and  does  not  supersede  the  defendant's 
right  to  make  defence  at  the  trial  in  term  against  the  attach- 
ment in  any  respect,  under  Sections  21,  22  and  23  of  said 
chapter. 

Section  2982. 

In  the  case  of  George  vs.  Blue,  3  Call,  455  (2d  edition,  394), 
decided  October  22, 1803,  it  was  held :  In  an  attachment  against 
an  absconding  debtor  judgment  should  be  first  entered  against 
the  debtor,  and  then  the  garnishee  should  be  ordered  to  pay  it» 
If  the  attachment  demands  only  a  specific  amount  and  costs, 
the  court  cannot  give  judgment  for  interest. 

In  the  case  of  Gibson  vs.  White  <&  Co.,  3  Munf.,  94,  decided 
March,  1812,  it  was  held :  In  a  suit  in  chancery  against  a  de- 
fendant who  is  out  of  this  country,  and  another  who  is  within 
the  same,  having  in  his  hands  effects  of,  or  otherwise  indebted 
to,  such  absentee,  a  decree  cannot  be  entered  against  the  de- 
fendant in  this  country  until  by  legal  and  regular  proceedings 
the  plaintiff  has  established  his  claim  against  the  absentee. 

In  such  case,  if  the  defendant  in  this  country  appear  not  to 
be  a  debtor  of  the  absentee,  but  to  hold  effects  belonging  to  him 
by  a  title  not  effectual  against  creditors,  or  without  any  title  at 
all,  he  should  be  considered  personally  responsible  only  for  so 
much  as  he  may  have  consumed  or  appropriated  to  his  own  use, 
so  as  not  to  be  foiihcoming,  or  for  the  profits  he  may  have  re- 
ceived ;  but  for  that  amount  a  decree  may  be  made  against  him 
personally  in  the  first  place,  holding  the  property  in  his  hands 
ultimately  bound  if  he  be  insolvent ;  and  for  the  balance  of  the 
plaintiffs  claim  the  court  may  proceed  in  the  first  place  against 
the  property  itself,  either  by  considering  such  defendant  a  trus- 
tee for  the  use  of  creditors  and  directing  a  sale  unless  the  debt 
be  paid  by  a  given  day,  or  by  sequestering  it  as  the  property  of 
the  absentee. 

In  the  case  of  Watts  vs.  Kinney,  3  Leigh,  272,  decided  Novem- 
ber, 1831.  Upon  a  foreign  attachment  in  chancery  to  subject 
lands  of  the  absent  debtor  to  a  debt  claimed  by  an  attaching 
creditor,  payable  in  instalments,  some  of  which  have  and  others 
have  not  fallen  due  at  the  time  of  the  decree.  Held :  The  court 
ought  not  to  direct  the  sale  of  the  subject  to  satisfy  more  than 
the  instalments  already  due,  but  should  order  a  sale  to  satisfy 
what  is  due,  and  hold  the  creditor's  attachment  a  lien  on  the 
subject,  for  the  instalments  afterwards  to  fall  due. 

The  reference  to  3  Leigh,  719,  is  an  error. 

The  reference  to  1  Grat.,  96,  is  an  error. 

In  the  case  of  Williamson  vs.  Gayle,  7  Grat.,  152,  decided 
November  18, 1850,  it  was  held  :  The  attaching  creditor,  having 
established  his  debt,  is  entitled  to  a  personal  decree  against  the 
absent  debtor,  though  the  whole  property  attached  is  exhausted 
in  paying  the  debt  of  the  home  defendant. 


Citations  to  the  Code  of  Virginia.  631 

In  the  case  of  Schofield  vs.  Cox  et  als.,  8  Grat.,  533,  decided 
January,  1852.  A.,  living  out  of  the  State,  D.  sues  out  a  foreign 
attachment  against  him,  and  attaches  the  one-third  of  the  land 
which  was  not  sold  to  B.  and  also  the  debt  due  from  B.  to  A., 
the  attachment  being  issued  after  the  assignment  to  C.  Held  : 
As  between  the  attaching  creditor  and  the  assignee,  the  latter 
has  the  preference. 

The  whole  land  being  sold  together,  the  one-third  and  so 
much  of  the  two-thirds  of  the  purchase-money  as  is  necessary 
will  be  applied  to  discharge  the  first  encumbrance,  and  the 
balance  will  be  applied  to  pay  the  assignee. 

The  attaching  creditor,  proving  his  debt,  is  entitled  to  a  per- 
sonal decree  against  his  absent  debtor,  though  the  property  at- 
tached may  be  adjudged  to  the  assignee. 

In  the  case  of  O  Brien  et  als.  vs.  Stephens  et  als.,  11  Grat., 
610,  decided  July,  1854,  it* was  held:  If  an  absent  defendant 
does  not  appear  in  the  cause,  there  cannot  be  a  personal  decree 
against  him,  but  the  attached  eflfects  can  alone  be  subjected ; 
but  if  he  does  appear,  there  may  be  a  personal  decree  only 
against  him,  or  there  may  be  both  a  personal  decree  and  a 
decree  subjecting  the  attached  effects. 

If  the  absent  debtor  appears,  and  the  attachment  has  not 
been  sued  out"  or  levied,  there  may  still  be  a  personal  decree 
against  him ;  or  the  plaintiff  may,  after  the  debtor's  appearance, 
make  the  affidavit,  sue  out  an  attachment,  and  have  it  levied  on 
the  effects  of  the  debtor,  and  have  them  subjected. 

See  the  case  of  Withers  vs.  JBuller,  30  Grat.,  547,  cited  ante. 
Section  2976. 

Section  2983. 

See  the  case  of  AndersonY^.  Johnson,  32  Grat.,  558,  ante.  Sec- 
tion 2959. 

Section  2984. 

In  the  case  of  McCluny  cfe  Co.  vs.  Jackson,  6  Grat.,  96,  de- 
cided July,  1849,  it  was  held :  A  subsequent  attaching  creditor 
may  appear  to  the  first  attachment,  and  either  in  his  own  name 
or  in  the  name  of  the  absconding  debtor,  contest  the  right  of  the 
first  attaching  creditor  to  recover. 

See  the  case  of  Moore  et  als.  vs.  Holt,  10  Grat.,  284,  cited  ante^ 
Section  2964. 

In  the  case  of  C.  i&  0.  R.  B.  Co.  vs.  Paine  c&  Co.,  29  Grat., 
502,  decided  November,  1877,  it  was  held:  Where,  along  with 
the  answer  of  the  corporation  in  such  proceeding,  an  affidavit  is 
filed,  alleging  that  some  third  person  claims  the  said  stock,  and 
that  the  corporation  claims  no  interest  therein,  nor  colludes 
with  such  claimant,  but  is  ready  to  dispose  of  the  stock  as  the 
court  shall  direct,  the  court  should  require  such  third  person  to 
appear  and  state  the  nature  of  his  claim  and  maintain  or  relin- 
quish the  same. 


632  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Anderson  vs.  Johnson,  32  Grat.,  558,  decided 
December  18,  1879,  it  was  held :  Where  persons  claiming  the 
property  attached,  or  some  interest  in  it,  are  admitted  as  parties 
in  the  cause,  their  claim  is  to  be  tried  by  a  jury  empaneled  for 
the  purpose,  as  provided  by  the  statute,  and  it  is  error  for  the 
court  to  pass  upon  the  claim  without  the  intervention  of  a  jury. 

In  the  case  of  Starke  vs.  Scott  et  als.,  78  Va.,  180,  decided 
December  13,  1883,  it  was  held :  When  petitioner  claims  the 
attache4  property,  the  proper  issue  to  be  tried  is,  "Whether 
or  not  petitioner  has  any  title  to,  lien  on,  or  interest  in  the  at- 
tached property  or  its  proceeds. 

Section  2986. 

In  the  case  of  Piatt  vs.  Howland,  143  Leigh,  507  (2d  edition, 
531),  decided  December,  1839,  it  was  held :  In  a  suit  in  equity 
against  an  absent  defendant  alleged. to  be  indebted  to  the  plain- 
tiff, and  a  home  defendant  having  effects  in  his  hands,  the  plain- 
tiff should  prove  himself  in  a  legal  manner  to  be  a  creditor  of 
the  absent  defendant ;  but  if  a  decree  be  rendered  without  such 
proof,  the  absent  defendant  cannot  obtain  redress  by  appeal- 
ing from  the  decree ;  he  must  seek  it  in  the  mode  prescribed 
by  the  statute,  that  is,  he  must  appear  in  the  court  which  pro- 
nounced the  decree,  and  petition  to  have  the  cause  reheard. 
Upon  the  absent  defendant  giving  security  for  payment  of 
costs,  he  will  be  admitted  to  answer  the  bill,  but  the  court  will 
not  set  aside  the  decree  as  soon  as  the  answer  is  filed.  After 
issue  is  joined,  the  parties  on  both  sides  will  have  an  opportu- 
nity of  examining  their  witnesses,  the  cause  will  be  matured  for 
rehearing,  and  upon  a  rehearing  such  decree  will  be  made  as 
may  be  just  and  right. 

In  the  case  of  Ttootes  {Executor)  vs.  Tom,pkins  {Trustee),  3  Grat., 
98,  decided  April,  1846,  it  was  "held :  The  statute  directing 
the  decree  against  an  absent  debtor  to  stand  absolutely  con- 
firmed against  the  absent  debtor,  who  shall  not  within  seven 
years  appear  and  petition  to  have  the  cause  reheard,  only  ap- 
plies to  so  much  of  such  decree  as  operated  upon  the  estate  or 
effects  of  such  absent  debtor,  subject  to  the  jurisdiction  of  the 
courts  of  this  Commonwealth. 

In  the  case  of  Barlee  <&  Co.  vs.  Pannill,  etc.,  6  Grat.,  442, 
decided  October  1849,  it  was  held :  An  absent  defendant,  against 
whom  a  decree  has  been  made,  cannot  appeal  from  the  decree. 
His  only  remedy  is  that  provided  by  the  statute. 

In  the  case  of  Lenow  vs.  Lenow,  8  Grat.,  349,  decided  January, 
1852.  A  proceeding  by  foreign  attachment  is  instituted  against 
two  persons  as  jointly  indebted  to  the  plaintiff.  One  of  them 
appears  and  answers  the  bill,  but  the  other  is  regularly  pro- 
ceeded against  as  an  absent  debtor,  and  there  is  a  joint  decree 


Citations  to  the  Code  of  Virginia.  633 

against  both  defendants.  Held :  That  the  absent  defendant  who 
did  not  appear  cannot  appeal. 

But  the  decree  being  a  joint  decree,  and  being  erroneous,  the 
appellate  court  will,  upon  the  appeal  of  the  absent  defendant 
who  did  not  appear  and  answer,  reverse  the  decree  as  to  both. 

In  the  case  of  Anderson  vs.  Johnson  et  als.,  32  Grat.,  558, 
decided  November,  1879,  it  was  held :  Under  the  statute,  Code 
of  1873,  Chapter  148,  Section  27,  a  defendant  in  a  foreign  at- 
tachment suit  may  appear  at  any  time  pending  the  suit,  and 
have  the  cause  reheard,  tendering  security  for  the  costs.  And 
have  the  proviso  of  the  statute,  which  excepts  from  the  opera- 
tion of  the  act  a  case  in  which  the  defendant  was  served  with 
a  copy  of  the  attachment,  or  with  process  in  the  suit,  issued 
more  than  sixty  days  before  the  date  of  the  decree,  only  refers 
to  such  a  service  in  the  proceeding  in  the  suit,  and  not  to  a 
service  out  of  the  suit  and  out  of  the  State;  and  a  service 
out  of  the  suit  and  out  of  the  State  can  have  no  greater  effect 
than,  if  so  great  as  an  order  of  publication,  duly  posted  and 
published. 

In  the  case  of  Smith  vs.  Life  Association  of  America,  76  Va.,  380. 

Removal  of  Causes. — Non-resident  Defendant. — Case  Re- 
opened.— Non-resident  insurance  company  is  sued  by  a  citizen 
of  Virginia  on  a  contract  made  outside  of  the  State.  On  affi- 
davit that  defendant  is  a  non-resident  corporation,  having  effects 
in  P.  county,  in  this  State,  attachment  is  sued  out  to  subject 
the  effects  to  plaintiff's  claim,  and  order  of  publication  made 
and  executed.  Neither  process  in  the  suit  nor  copy  of  attach- 
ment is  served  on  defendant.  Judgment  is  rendered  April,  1878 ; 
against  defengant.  In  September,  1878,  defendant  petitioned 
the  court  to  re-open  and  rehear  the  case.  Case  being  re-opened, 
defendant  filed  petition  setting  forth  that  amount  in  dispute  was 
over  five  hundred  dollars,  and  controversy  between  citizens  of 
different  States,  tendered  the  usual  bond  with  security,  and 
prayed  the  removal  of  the  cause  to  the  Circuit  Court  of  the 
United  States  for  the  eastern  district  of  Virginia.     Held  : 

1.  Suit  not  against  foreign  corporation  doing  business  in  Vir- 
ginia under  Code  1873,  Chapter  166,  Section  7,  but  under  Chap- 
ter 148,  Sections  1  and  20. 

2.  Under  Chapter  148,  Sections  27,  defendant  was  entitled  to 
have  the  case  re-opened  and  reheard. 

3.  Under  laws  of  United  States,  defendant  was  also  entitled 
to  the  removal  as  prayed  for,  the  motion  therefor  having  been 
made  at  first  term,  at  which  the  cause  might  have  been  tried. 

In  the  case  of  Smith  cf?  Wim.satt  vs.  Chilton  {Assignee),  77 
Va.,  535,  decided  May  10,  1883,  it  was  held :  Defendants  in  for- 
eign attachment  may  appear  pending  the  suit,  tender  security 
for  costs  and  have  it  reheard.     The  exception  of  a  defendant 


634  Citations  to  the  Code  of  Virginia. 

served  with  a  copy  of  the  attachment,  or  with  process  in  the- 
suit  does  not  refer  to  service  thereof  outside  the  proceedings  in 
the  suit  or  outside  of  the  State  ;  and  such  service  can  have  na 
greater  effect  than  an  order  of  publication  duly  posted  and  pub- 
lished. This  rule  applies  to  acknowledgments  of  such  services 
made  outside  the  State. 

Section  2989. 
In  the  case  of  Magill  vs.  Sauer,  20  Grat.,  540,  decided  March,, 
1871,  it  was  held :  Upon  a  decree  in  favor  of  an  attaching  credi- 
tor, and  an  appeal  therefrom,  the  appellant  gives  an  appeal. 
bond.    The  giving  of  this  bond  does  not  release  the  attachment. 

Section  2990. 

See  the  references  given  to  Section  3495. 

In  the  case  of  W.  c&  D.  Kyle  <&  Co.  vs.  Connelly^  3  Leigh,, 
719,  decided  May,  1832,  it  was  held :  As  one  member  of  a  mer- 
cantile house  to  which  a  debt  has  been  contracted  is  compe- 
tent to  sue  out  an  attachment  for  the  house  against  the  debtor, 
so  that  person  is  the  proper  one  to  execute  the  attachment  bond 
required  by  the  statute.  And  the  bond  of  the  partner  suing  out 
the  attachment,  with  surety,  conditioned  that  that  partner  shall 
pay  all  costs  if  the  house  be  cast  in  the  suit,  and  all  damages 
that  shall  be  adjudged  against  him  for  suing  out  the  attach- 
ment, is  a  good  bond. 

In  the  case  of  Jones  &  Ford  vs.  Anderson  et  al.,  7  Leigh,  308, 
decided  in  March,  1836 :  An  attachment  against  an  absconding 
debtor  is  sued  out  in  the  name  of  a  partnership ;  the  bond  taken 
is  the  bond  of  F.,  one  of  the  partners,  with  surety,  reciting  that 
F.  has  obtained  the  attachment,  and  conditioned  that,  if  he  be 
cast  in  the  suit,  he  shall  pay  all  costs  and  damages  which  shall 
be  recovered  against  him.  Held :  The  bond  is  naught,  and  the 
attachment  is,  therefore,  illegal  and  void. 

In  the  case  of  McOluny  (&  Co.  vs.  Jackson,  6  Grat.,  96,  decid- 
ed July,  1849,  it  was  held:  An  attachment  being  sued  out  by 
one  member  of  a  firm  for  a  debt  due  to  the  firm,  in  the  name 
of  the  firm,  it  is  proper  that  the  bond  executed  by  the  partner 
who  sues  out  the  attachment  and  by  his  surety,  should  bind  the 
obligors  to  be  answerable  for  the  failure  of  the  firm  to  prosecute 
their  attachment  with  success. 

Section  2991. 
In  the  case  of  Levy  vs.  Arnsthall,  10  Grat.,  641,  decided  in 
January,  1854,  it  was  held :  The  act  which  authorizes  a  plain- 
tiff in  an  action  to  authorize  security  in  certain  cases  from  the 
defendant,  constitutes  the  relation  of  principal  and  bail  between 
the  defendant  and  his  surety ;  and  it  is  the  right  of  the  surety 
to  surrender  the  principal. 


Citations  to  the  Code  of  Vieginia.  635 

In  the  case  of  Forbes  and  Alters  vs.  Hagman,  75  Va.,  168, 
decided  January  13,  1881:  F.  and  A.,  partners,  living  in  Balti- 
more, carry  on  a  business  near  Richmond  by  their  general 
agent,  M.  M.  brings  an  action  in  the  name  of  F.  &  A.  against 
H.  &  G.,  partners,  claiming  that  they  are  indebted  to  the  plain- 
tiffs ;  and,  upon  affidavit  by  M.  under  the  statute,  A.  &  G.  are 
held  to  bail,  and,  not  being  able  to  give  it,  they  are  held  in  prison 
until  the  trial,  when  the  plaintiffs  are  non-suited.  H.  &  G.  then 
bring  their  separate  actions  against  F.  &  A.  for  malicious  arrest 
and  imprisonment.  It  seems  that  F.  &  A.  had  no  knowledge  of 
the  arrest  and  imprisonment  until  the  parties  were  in  prison, 
when  F.,  coming  to  Richmond,  was  informed  of  the  fact  by  M., 
when  he  made  no  inquest  as  to  the  grounds  of  the  arrest,  and 
gave  no  directions  for  their  release.     Held : 

1.  This  was  a  virtual  ratification  and  adoption  of  what  had 
been  done  by  the  agent,  and  the  principals,  F.  &  A.,  are  respon- 
sible for  the  consequences  of  the  agent's  act. 

2.  Under  the  statute,  to  authorize  the  holding  of  the  parties 
to  bail,  M.  must  have  believed,  when  he  made  his  affidavit,  that 
the  facts  sworn  to  therein  were  true,  that  is,  that  the  plaintiffs 
in  their  suit  had  right  of  action  against  the  defendants  in  that 
suit  for  the  amount  stated  in  the  affidavit,  and  that  there  was 
probable  cause  for  believing  that  the  said  defendants  were  about 
to  quit  the  State,  unless  forthwith  apprehended;  and,  taking 
him  for  a  man  of  common  prudence,  he  must  have  been  justi- 
fied in  so  believing  from  the  circumstances  then  known  to  him. 
It  was  not  necessary  that  the  facts  should  be  actually  true,  but 
it  is  necessary  that  he  should  have  believed  them  to  be  true, 
and  that,  as  a  prudent  man,  under  ^the  circumstances  then 
known  to  him,  he  was  warranted  in  entertaining  that  belief. 

3.  M.,  the  agent,  had  been  instructed  by  his  principals  to 
take  no  legal  steps  in  regard  to  any  of  their  matters  without 
first  consulting  and  advising  with  W.,  their  regular  attorney  in 
Richmond;  and  he  did  consult  the  counsel,  and  acted  on  his 
instructions.  It  is  true  that  a  party  in  some  cases  may  act  on 
the  advice  of  counsel  hona  fide  sought  and  obtained,  without  in- 
curring liabiUty  for  damages  as  for  tort,  even  though  the  coun- 
sel might  have  been  mistaken  in  the  law;  but  to  justify  him 
something  more  than  the  mere  advice  must  be  made  to  appear. 
The  statement  of  facts  must  be  shown  on  which  the  advice  was 
given,  and  it  must  be  a  full,  correct,  and  honest  statement  by 
the  defendants  of  all  the  material  facts  known  to  them,  without 
reference  to  their  understanding  of  the  case. 

4.  In  this  action  malice  may  be  inferred  for  want  of  probable 
cause,  though  it  is  said  that  it  is  not  a  necessary  inference.  It 
is  always  a  question  for  the  jury  under  all  the  circumstances  of 
the  case.     But  the  term  malice  is  not  to  be  considered  in  the 


636  Citations  to  the  Code  of  Virginia. 

sense  of  spite  or  hatred  against  an  individual,  but  of  rrudus  ani- 
mus,  and  as  denoting  that  the  party  is  actuated  by  improper 
and  indirect  motives.  The  improper  motive,  or  want  of  im- 
proper motive,  inferrible  for  a  wrongful  act  based  upon  no  rea- 
sonable ground,  constitutes  of  itself  all  the  malice  deemed  es- 
sential in  law  to  the  maintenance  of  the  action.  An  instruction 
by  the  court  that  the  plaintiff  was  not  entitled  to  recover  with- 
out satisfactory  proof  that  the  arrest  was  made  without  prob- 
able cause  and  with  malice.  But  if  they  shall  beheve  that 
at  the  time  of  instituting  the  suit  and  of  the  suing  out  of  the 
capias,  the  defendants  had  no  reasonable  and  proper  cause  for 
believing,  etc.,  that  the  plaintiff  was  about  to  leave  the  State 
unless  he  was  forthwith  apprehended,  the  jury  may  infer  malice 
from  their  action ;  and,  if  they  think  such  inference  a  reason- 
able one  from  all  the  evidence,  they  should  find  for  the  plain- 
tiff.    Held: 

1.  The  using  of  the  word  "reasonable"  as  well  as  "probable" 
is  not  error. 

2.  The  words  "they  should  find  for  the  plaintiff"  must  be 
construed  as  based,  not  on  the  finding  of  malice  only,  but  on 
the  finding  also  of  the  non-existence  of  probable  cause. 

3.  The  legal  malice  may  exist,  though  the  party  making  the 
oath  may  not  have  wilfully  sworn  falsely. 

Section  2995. 
In  the  case  of  Zevy  vs.  Arnstkall,  10  Grat.,  641,  decided  Jan- 
uary, 1854,  it  was  held :  The  act  which  authorizes  the  plain- 
tiff to  file  interrogatories  to  a  defendant  in  custody,  and  au- 
thorizes the  court,  upon  notice  to  the  plaintiff  or  his  attorney, 
to  discharge  a  defendant  from  custody,  applies  to  a  defendant 
in  custody  of  his  bail,  as  well  as  a  defendant  in  jail. 


TITLE  XLIV. 
CHAPTEB  CXLII. 

Section  2998. 

In  the  case  of  Storrs  vs.  Payne,  4  H.  &  M.,  506,  decided  by 
the  Superior  Court  of  Chancery  for  Richmond,  February,  1810, 
it  was  held:  A  sheriff  may  file  a  bill  of  interpleader  to  settle 
the  rights  of  property  taken  in  execution,  to  which  there  are 
conflicting  claims,  but  an  injunction  will  not  be  awarded  to  stay 
any  suit  against  him  in  case  of  his  selling  the  property ;  because 
the  law  provides  him  an  ample  remedy. 

In  the  case  of  Beers,  Booth  c&  St.  Jolin  vs.  Spooner,  9  Leigh,  153, 
decided  January,  1838.     S.  files  a  bill  of  interpleader  against 


Citations  to  the  Code  of  YiEomiA.  637 

A.  and  B.,  in  order  that  it  may  be  litigated  and  determined  be- 
tween them  which  is  entitled  to  a  sum  of  money  in  S.'s  hands, 
and  the  bill  is  filed  in  consequence  of  a  demand  made  on  S.  by 

B.  for  the  money.  The  court  holding  that  A.  was  entitled  to 
the  money  in  question,  decreed  that  B.  should  pay  A.  his  costs 
of  suit,  and  decree  affirmed. 

In  the  case  of  Townes  vs.  Birchett,  12  Leigh,  173,  decided 
April,  1841,  it  was  held:  Where  au(rtioneers  are  stockholders 
and  trustees  of  proceeds  of  sales  by  them  made,  bound  to 
pay  them  to  one  or  the  other  of  two  parties,  upon  conditions 
agreed  upon,  equity  has  jurisdiction  to  relieve,  on  a  bill  by  one 
of  the  claimants  against  the  auctioneers  and  the  other  claimant. 

In  the  case  of  George  et  als.  vs.  Pitcher  et  als.,  28  Grat.,  299 
and  304-5,  decided  March,  1877.  The  plaintiff  in  a  suit  of 
interpleader  continues  to  be  a  substantial  and  necessary  party 
until  he  has  fully  rendered  the  debt,  duty  or  other  thing  re- 
quired of  him. 

P.  filed  a  bill  of  interpleader  in  the  Circuit  Court  of  Rich- 
mond against  various  persons  made  parties  defendants,  of  whom 
some  were  citizens  and  residents  of  Virginia,  others  of  Pennsyl- 
vania, and  others  of  States  other  than  either  Virginia  or  Penn- 
sylvania. The  defendants,  who  were  citizens  and  residents  of 
Pennsylvania,  answered  tlie  bill,  and  at  the  same  time  filed  their 
petition  in  due  form  for  the  removal  of  the  cause  from  the 
State  to  the  Federal  Court.  Held :  Whether  P.  is  regarded  as 
a  substantial  or  as  a  mere  nominal  party,  there  is  no  right  of 
removal  either  under  the  act  of  Congress  of  March  2,  1867,  or 
of  July  27,  1866. 

See  the  case  of  C.  &  O.  R.  R.  Co.  vs.  Paine,  29  Grat.,  502, 
cited,  a7itey  Section  2984. 

In  the  case  of  First  National  Bank  of  Alexandria  vs.  Turn- 
hull  ck  Co.,  32  Grat.,  695,  decided  January,  1880.  A.  being  the 
owner  of  a  cotton  factory,  enters  into  a  covenant  under  seal  with 
T.,  which  is  duly  admitted  to  record,  which,  reciting  a  previous 
deed  of  trust  by  A.  to  secure  advancements  made  or  to  be  made 
by  T.  to  A.,  witnesses  that  in  consideration  of  the  premises  and  of 
the  advances  already  made  and  to  be  thereafter  made  by  T.  for 
the  purchase  of  cotton  or  for  other  expenditures  connected  with 
the  manufacture  of  cotton  goods  at  A.'s  factory,  the  said  A. 
covenants  to  deliver  to  the  said  T.  each  yard  of  cotton  goods 
manufactured  by  him  at  the  said  factory ;  and  T.  covenants  that 
he  will,  from  time  to  time,  advance  such  sums  of  money  as  may 
be  required  for  the  purchase  of  cotton  manufactured  in  said 
factory,  and  that  he  will  advance  further  sums  of  money  as  may 
be  required  to  pay  hands  and  necessary  expenses  incurred  in 
running  the  machinery  in  said  factory,  etc. ;  and  it  was  further 
agreed  between  the  parties  that  the  said  A.  shall  sell  no  goods 


638  CrrATiONS  to  the  Code  op  Yirginia. 

manufactured  in  the  said  factory,  unless  upon  a  receipt  of 
written  authority  from  T.  to  that  effect,  specifying  the  amount 
of  goods  to  be  sold,  the  price  and  terms  of  sale,  and  approving 
the  credit  of  the  purchaser ;  and  T.  shall  receive  five  per  cent. 
for  commissions  and  guarantee  on  the  entire  product  of  said 
factory,  whether  sold  by  T.  or  A.  by  the  authority  of  T.  as  afore- 
said ;  and  T.  is  to  have  the  same  security  under  the  said  deed 
of  trust  as  if  this  covenant  had  been  executed  at  the  same  time 
as  the  deed.  Held :  A  creditor  of  A.  having  levied  his  execu- 
tion on  the  said  raw  cotton,  cotton  yam,  and  cotton  cloth,  T. 
may  interplead  and  set  up  his  title  to  the  property  under  the 
covenant. 

Section  2999. 
In  the  case  of  Baird  vs.  Bice,  1  Call,  18  (2d  edition,  15),  de- 
cided October  14,  1797.  A.  recovered  judgment  against  B.,  and 
C,  his  surety.  A.  issued  execution  thereon,  which  was  levied 
on  the  property  of  B.  The  plaintiff,  A.,  receiving  part  of  the 
money,  gave  B.  further  time  for  the  balance,  and  ordered  the 
officer  to  restore  the  goods  to  B.  Held :  That  by  this  procedure 
the  judgment  was  discharged  at  law,  and  C,  the  surety,  was 
discharged  in  equity,  in  which  he  was  protected  against  a  second 
execution,  by  an  injunction. 

Section  3001. 

In  the  case  of  Carrington  vs.  Anderson,  5  Munf.,  32,  decided 
February  7,  1816,  it  was  held :  Any  person  claiming  the  pro- 
perty sold  under  an  execution,  may  prosecute  an  action  of  debt 
on  the  bond  of  indemnity,  in  the  name  of  the  sheriff  or  other 
officer  to  whom  it  is  given,  without  proving  that  any  damage  has 
been  sustained  by  such  officer. 

In  the  case  of  Saunders  vs.  Pate  et  als.^  4  Band.,  8,  decided 
January,  1826.  Qiicere :  Whether  the  purchaser  of  property 
sold  under  execution  can  have  the  benefit  of  an  indemnifying 
bond,  given  to  the  sheriff,  on  the  principle  of  substitution? 

In  the  case  of  Hamilton  vs.  Shrewhtcry,  4  Rand.,  427,  decided 
August,  1826,  it  was  held :  A  fair  purchaser  under  a  sheriff's 
sale,  without  knowledge  of  any  improper  conduct  on  the  part  of 
the  office,  acquires  a  valid  title  to  the  property  purchased,  and 
the  remedy  of  the  party  injured  is  by  action  of  law  for  damages 
against  the  sheriff.  The  same  remedy  applies  where  a  sheriff 
has  improperly  refused  a  forthcoming  bond  when  he  ought  to 
have  received  it. 

In  the  case  of  Jacoh  Martin  {Coixstable,  etc.)  vs.  Sturtn  et  ah., 
5  Rand.,  693,  decided  by  the  General  Court,  November,  1827,  it 
was  held :  A  constable  is  not  authorized  to  take  the  indemnify- 
ing bond  prescribed,  when  he  levies  an  execution  issued  by  a 
single  magistrate  on  a  judgment  for  a  small  debt. 


Citations  to  the  Code  op  Virginia,  639 

In  the  case  of  Dabney  vs.  Catlett,  12  Leigh,  394,  decided 
IS^ovember,  1841.  Sheriff  on  seizure  of  chattels  under  s^Ji.fa. 
"takes  an  indemnifying  bond,  with  condition  to  save  sheriff  harm- 
less, and  to  pay  and  satisfy  any  person  claiming  title  to  the 
property  all  damages  he  may  sustain  by  the  seizure  and  sale, 
omitting  to  provide  also  that  the  obligors  shall  warrant  the  pro- 
perty sold  under  the  execution  to  the  purchaser  thereof  at  the 
sheriffs  sale.  Held :  The  bond  is  defective  and  not  good  as  a 
statutory  bond,  but  it  is  good  at  common  law,  and  the  sheriff 
may  maintain  an  action  on  it  for  indemnity  against  damages  re- 
covered against  him  by  the  owner  of  the  property  seized  and  sold. 

The  reference  to  12  Leigh,  634,  is  to  an  appended  note  to 
the  same  case  of  Dabney  vs.  Catlett,  p.  394,  above  cited. 

In  the  case  of  Aylett  vs.  Roane,  1  Grat.,  282,  decided  Novem- 
ber, 1844.  Upon  a  sale  of  property  under  an  execution,  the 
sheriff  takes  a  bond  of  indemnity,  with  conditions  according  to 
the  statute  to  indemnify  the  sheriff,  and  to  pay  and  satisfy  to 
any  person  claiming  title  to  the  property  all  damages  sustained 
in  consequence  of  the  seizure  and  sale  thereof,  but  it  does  not 
contain  a  provision  for  the  protection  of  the  purchaser  of  the 
property  as  required  by  statute.  In  an  action  by  a  claimant 
of  the  property  against  the  sheriff.  Held:  This  is  a  good 
statutory  bond,  and  protects  the  sheriff  from  the  action  of  the 
claimant  of  the  property. 

In  the  case  of  Davis  y^.  Davis,  2  Grat.,  363,  decided  October, 
1845.  In  an  action  against  a  constable  for  taking  the  property 
of  the  plaintiff  upon  three  executions  against  a  third  person: 
The  constable  filed  a  special  plea,  in  which  he  set  up  an  in- 
demnifying bond  executed  by  the  plaintiff  in  the  executions. 
The  plaintiff  craved  oyer  of  the  bond,  and  demurred  to  the 
plea ;  and  it  was  held :  That  it  is  not  necessary  to  set  out  the 
judgments  in  the  plea.  That  though  the  executions  appeared 
on  their  face  to  be  issued  by  a  justice  of  Hardy  county,  yet 
having  in  fact  been  issued  by  a  justice  of  Hampshire  when 
they  were  levied,  and  this  being  averred  in  the  plea,  they 
are  valid,  and  give  authority  to  the  oflGicer  to  execute  them. 
That  it  is  not  necessary  to  set  out  the  executions  in  the  indem- 
nifying bond.  That  one  indemnifying  bond  may  be  taken  in 
several  executions.  That  a  firm  being  plaintiffs  in  the  execu- 
tions, the  bond  executed  by  one  of  the  firm,  in  the  partnership 
name,  is  a  good  bond  of  the  person  so  executing  it.  That  the 
reciting  in  the  bond  of  the  names  of  the  plaintiffs  in  the  execu- 
tion by  their  partnership  name,  is  sufficient. 

In  the  case  of  Jlu-ff'mmi  vs.  LeffeWs  Executor^  etc.,  32  Grat., 
41,  decided  July,  1879.  In  July,  1870,  D.,  deputy  for  H., 
sheriff  of  Craig  county,  had  in  his  hands  a  writ  of  ji.  fa.  in 
favor  of  L.  against  M.     He  went  to  the  house  of  M.  to  levy  it, 


640  Citations  to  the  Code  op  Virginia. 

when  M,  claimed  the  benefit  of  the  homestead  exemption,  and 
claimed  his  personal  property  to  the  extent  it  would  go.  The 
law  to  carry  the  homestead  exemption  of  the  constitution  of 
Virginia  into  effect  had  just  been  passed,  and  neither  the  deputy 
sheriff  or  the  debtor,  M.,  knew  the  form  in  which  the  exemption 
could  be  claimed,  although  M.  insisted  on  his  right  to  claim  it. 
D.  then  notified  L.  of  M.'s  claim  of  homestead,  and  demanded 
of  him  an  indemnifying  bond  before  levying  'Cix&  fi.  fa.,  which  L. 
declined  to  give.  The  debt  was  lost  by  the  failure  to  levy.  On 
a  suit  by  L.  against  H.,  sheriff,  and  his  sureties,  to  recover  the 
debt  in  the  execution  with  interests  and  costs.  Held:  The 
deputy  was  excusable  for  not  levying  and  selling  under  the  cir-  ' 
cumstances  after  L.  had  failed  to  give  the  indemnifying  bond 
demanded  of  him ;  and  therefore  L.  cannot  recover  against  H. 
and  his  sureties  on  his  official  bond  the  debt  thus  lost  by  the 
failure  to  levy. 

In  the  case  of  Sage  et  als.  vs.  Dickinson  et  als.,  33  Grat.,  361, 
decided  July,  1880.  A  judgment  is  obtained  in  1870  on  a  con- 
tract entered  into  prior  to  the  present  Constitution  of  Virginia, 
and  in  the  same  year  an  execution  issued  thereon,  placed  in  the 
hands  of  the  deputy  sheriff  and  levied  on  property  of  the  judg- 
ment debtor,  who  gives  a  forthcoming  bond,  and  has  the  pro- 
perty forthcoming  on  the  day  and  place  of  the  sale.  The  debtor 
then  claims  the  property  as  exempt  under  the  homestead  provi- 
sion of  the  Constitution  and  statute  of  Virginia,  and  the  deputy 
sheriff  releases  the  property  to  him,  without  requring  an  idem- 
nifying  bond  of  the  creditor,  or  even  notifying  him  of  the  claim 
of  homestead  set  up  by  the  debtor.  In  a  suit  by  the  creditor 
against  the  sheriff  and  his  sureties  to  recover  the  value  of  the 
property  lost  by  the  conduct  of  the  deputy.  Held :  The  sheriff 
and  his  sureties  are  liable. 

When  an  officer  surrenders  property  he  has  seized  under  execu- 
tion, he  does  it  at  his  peril,  and  the  burden  of  establishing  that 
it  is  not  liable  to  levy  is  on  him. 

Section  3003. 

In  the  case  of  McClunn  vs.  Steel,  2  Va.  Cases,  256,  decided  by 
the  General  Court,  it  was  held :  A  constable,  sheriff  or  other  offi- 
cer, who  sells  property  taken  under  execution,  is  not  protected 
from  an  action  of  trespass  by  the  claimant  unless  the  indemnify- 
ing bond  taken  by  him  conforms  in  all  respects  to  the  statute, 
and  particularly  contains  the  clause  inserted  for  the  benefit  of 
the  person  claiming  title  to  the  property. 

In  the  case  of  Stone  vs.  Pointer,  5  Munf.,  287,  decided  De- 
cember 7,  1816,  it  was  held:  The  sheriff  having  received  the 
bond  of  indemnity  is  bound  to  sell  the  property  taken  in  execu- 
tion, whether  it  belong  to  the  debtor  or  not. 


Citations  to  the  Code  of  Virginia.  641 

In  the  case  of  Garlands  vs.  Jacobs,  etc.,  2  Leigh,  651,  decided 
November,  1830,  it  was  held  :  An  indemnifying  bond  given  to  a 
sheriff  can  ouly  be  put  in  suit  at  the  relation  of  the  person  hav- 
ing the  legal  title  to  the  property  taken  in  execution  and  sold  by 
the  sheriff,  not  at  the  relation  of  any  person  having  an  equita- 
ble right  therein. 

In  the  case  of  Couch  vs.  Miller,  2  Leigh,  545,  decided  Febru- 
ary, 1831,  it  was  held:  Upon  a  motion  to  quash  a  forthcoming 
bond  for  defects  apparent  on  the  face  of  the  execution  on  which 
it  was  taken,  an  appellate  coui't  will  regard  the  execution  as 
part  of  the  record,  though  not  made  so  by  any  express  order  to 
that  effect. 

In  the  case  of  Forkner  vs.  Stuart,  etc.,  6  Grat.,  197,  decided 
July,  1849,  it  was  held :  In  an  action  on  an  indemnifying  bond 
the  relator  claims  the  title  to  the  property  sold  under  a  sale 
made  by  one  partner  without  the  consent  or  knowledge  of  the 
other  of  partnership  property.  The  relator  may  recover  for  the 
undivided  interest  of  the  partner  who  made  the  sale,  under  a 
general  allegation  in  the  declaration  of  his  ownership  of  the 
property. 

CHAPTEK  CXLIIL 

Section  3006. 

In  the  case  of  Coupland  vs.  Anderson,  2  Call,  106  (2d  edition, 
86),  decided  October  25,  1799,  it  was  held:  If  there  be  a  refer- 
ence by  rule  of  court  in  a  suit  depending  to  four  arbitrators,  or 
any  three,  and  afterwards  two  others  be  added,  if  two  of  the  first 
named  arbitrators  and  one  of  the  last  make  an  award,  it  is  suflfi- 
cient,  and  a  majority  of  the  whole  is  not  required. 

If  the  plaintiff  be  bail  for  the  defendant  at  the  time  of  the  re- 
ference in  a  depending  suit,  the  failure  of  the  arbitrators  to 
award  concerning  that  undertaking  will  not  vitiate  the  award. 

The  court  may  give  costs,  though  the  award  does  not  mention 
them. 

In  the  case  of  Britton  vs.  Williams's  Devisees^  6  Munf.,  453, 
decided  December  15,  1819,  it  was  held :  Although  infants  are 
bound  by  judgments  had  under  the  superintendence  and  pro- 
tection of  the  court,  yet,  where  the  case  is  referred  to  arbitra- 
tors, whereby  they  are  deprived  of  that  protection,  a  submission, 
even  by  rule  of  court,  ought  not  to  be  sanctioned,  even  though 
the  award  be  in  their  favor ;  for,  as  the  awards  are  in  the  nature 
of  judgments,  and  are  to  be  final  and  conclusive,  which  cannot 
be  where  one  party  has  a  right  to  avoid  them,  it  follows  that  a 
submission  by  infants,  although  with  adults,  cannot  be  obliga- 
tory on  either  party. 

In  the  case  of  Smith  et  als.  vs.  Smith,  etc.,  4  Rand,,  95,  de- 
cided February,  1826,  it  was  held:  Equity  has  jurisdiction  to 

41 


642  Citations  to  the  Code  of  Virginia. 

decree  specific  execution  of  an  award  where  the  remedy  at  law 
is  inadequate.  Where  some  only  of  several  distributees  submit 
their  interests  to  arbitration,  the  award  will  be  binding  on  the 
parties  to  the  submission,  so  far  as  their  interests  are  concerned. 
When  parties  submit  a  question  of  law  alone  to  arbitration,  the 
award  is  binding,  though  contrary  to  law. 

In  the  case  of  Wheatley  vs.  Martiiis  Administrator,  6  Leigh, 
62,  decided  February,  1835,  it  was  held :  A  submission  to  arbi- 
tration, by  rule  of  court,  of  a  controversy  in  a  suit  pending  is 
not  within  the  statute  of  awards,  and  so  the  court  may  proceed 
to  judgment  on  the  award  at  the  same  term  to  which  it  is  re- 
turned. After  submission  to  arbitration,  by  rule  of  court,  plain- 
tiff dies,  and  suit  is  revived  by  his  administrator ;  the  adminis- 
trator of  plaintiff  and  the  defendant  proceed  in  the  arbitration 
without  any  new  submission,  and  an  award  is  made.  Held: 
The  death  of  the  plaintiff  did  not  avoid  the  submission,  and  the 
award  under  it  is  good. 

In  the  case  of  Sutton  vs.  Dickinson,  9  Leigh,  142,  decided 
December,  1837 :  Submission  to  arbitrators  of  matters  in  differ- 
ence in  a  suit  pending ;  award  professing  to  be  made,  and  ap- 
pearing to  be  in  fact  made,  pursuant  to  the  submission,  but  not 
stating  expi-essly  that  the  arbitration  was  confined  to  the  mat- 
ters in  difference  in  the  suit ;  and  this  award  was  held  good. 

In  the  case  of  Martin  vs.  Martin,  12  Leigh,  495,  decided 
January,  1842 :  S.  brings  detinue  against  J.  for  one  slave,  and 
J.  brings  detinue  against  S.  for  three  slaves,  and  J.  brings  also 
an  action  of  debt  against  S.,  and  the  parties  agree  to  refer  all 
matters  in  difference  in  the  three  suits  to  two  arbitrators  and 
their  umpire,  whose  awards,  or  the  awards  of  their  umpire,  are 
to  be  made  the  judgments  of  the  court;  which  submission  is 
made  a  rule  of  court;  the  arbitrators  proceed  to  arbitrate  the 
two  actions  of  detinue,  and  make  an  award  therein  without  arbi- 
trating the  action  of  debt;  in  their  award  the  date  of  the  sub- 
mission is  not  recited,  and  the  submission  is  recited  as  referring 
to  arbitration  the  two  actions  of  detinue  only ;  and  the  award 
in  J.'s  action  of  detinue  against  S.  gives  J.  the  three  slaves  de- 
manded in  his  declaration,  and  two  other  slaves,  the  increase  of 
a  female  slave  demanded,  born  after  the  action  was  brought. 
Held :  Neither  the  omission  to  state  the  date  of  the  submission 
in  the  award,  nor  the  recital  of  the  submission  as  referring  to 
the  two  actions  of  detinue  only,  nor  the  failure  to  proceed  to 
arbitration  of  the  action  of  debt,  is  a  good  ground  of  objection 
to  the  award  under  the  terms  of  this  submission. 

In  the  case  of  Corhin  et  als.  vs.  Adams  et  als.,  76  Va.,  58. 
Equitable  Jurisdiction:  Submission  Annulled. — Testator  willed 
his  property  to  four  of  his  ten  children.  These  four  had  claims 
against  his  estate  for  services,  and  their  consent  to  an  order 


Citations  to  the  Code  of  Virginia.  643 

vacating  the  will  was  given  upon  condition  that  their  claims  be 
paid  out  of  the  estate.  The  amount  was  to  be  ascertained  by 
three  disinterested  persons  selected  by  the  parties.  The  arbi- 
tration did  not  occur,  because  the  parties  did  not  agree  on  the 
arbitrators,  mainly  by  the  fault  of  others  than  the  claimants. 
The  latter  then,  considering  the  agreement  ended  and  the  order 
vacating  the  will  a  nullity,  filed  their  bill  asking  for  an  issue  </e- 
visavit  vet  noii.  The  verdict  was  for  the  will.  It  was  approved, 
and  the  agreement  was  annulled  by  the  court.     Held : 

1.  The  ^vill  being  established,  and  the  claimants  being  the 
only  devisees  and  owners  of  the  estate,  there  was  nothing  to 
arbitrate,  and  the  court  did  right  in  annulling  the  agreement  in 
order  to  terminate  the  litigation. 

2.  Submission  not  consummated.  Agreement  to  arbitrate  is 
no  bar  to  suit  at  law  or  in  equity,  and  no  foundation  for  a  de- 
cree of  specific  performance. 

3.  Submission — Breach — Remedy. — Only  remedy  for  refusal 
to  comply  with  agreement  to  arbitrate  is  by  action  for  damages, 
the  measure  of  recovery  being  the  costs  and  expenses  incurred, 
unless  there  be  a  bond  with  penalty  attached,  in  the  nature  of 
liquidated  damages. 

4.  Submission — Award. — After  the  agreement  has  been  con- 
summated by  an  award,  it  is  different,  the  award  binding  the 
parties,  and  only  impeachable  on  grounds  which  would  invalid- 
ate any  other  judgment. 

In  the  case  of  Doyle  vs.  Patterson,  84  Va.,  800,  decided  April 
26, 1888,  A  disputed  account  was  submitted  to  two  arbitrators  or 
an  umpire.  An  award  is  signed  by  the  latter  and  one  of  the  two 
arbitrators.  The  other  arbitrator  refused  to  sign  it  and  with- 
drew.    Held :  The  award  is  binding  on  the  parties. 

Section  3007. 

In  the  case  of  Porter  vs.  Harris,  4  Call,  485,  decided  April, 
1802,  it  was  held :  If  there  be  an  order  of  reference  by  consent, 
and  it  be  afterwards  set  aside  without  its  being  shown  at  whose 
instance,  or  for  what  cause  it  was  done,  and  no  exception  be 
taken  at  the  time,  the  court  of  appeals  will  affirm  the  judgment 
afterwards  rendered  upon  a  verdict  subsequently  obtained. 

In  the  case  of  Long  vs.  Long,  5  Call,  431,  decided  April,  1805, 
it  was  held :  After  reference  to  arbitrators  of  a  matter  in  court 
by  consent  of  parties,  and  award  made  and  set  aside,  either 
party,  may,  at  any  time  before  the  next  award,  rescind  the  order 
of  reference  and  discharge  the  arbitrators  from  proceeding  to  a 
decision. 

Section  3009. 

In  the  case  of  Schermer  vs.  Beale,  1  Wash.,  11,  decided  at 
the  spring  term,  1791,  it  was  held :  The  reasons  for  obstructing 


644  Citations  to  the  Code  of  Vibginia. 

or  setting  aside  awards,  according  to  the  best  construction  of  the 
statutes,  are  either  some  illegality  or  injustice  apparent  on  the 
face  of  them  or  for  misbehavior  in  the  arbitrators. 

In  the  case  of  Pleasants,  Shore  (&  Co.,  and  Anderson  vs.  Ross^ 
1  Wash.,  156,  decided  at  the  spring  term,  1793,  it  was  held : 
Affidavits  may  be  introduced,  but  they  must  tend  to  prove  par- 
tiality or  misbehavior  in  the  arbitrators  and  not  mistake  in  law 
or  fact. 

In  the  case  of  Smallwood  vs.  Mercer  <&  TIansborough,  1  Wash.,. 
290,  decided  at  the  fall  term,  1794,  it  was  held :  Where  no  award 
is  made  by  the  arbitrators  in  the  time  limited  by  the  arbitration 
bond,  no  contract  made  contingent  upon  the  result  of  such 
award  will  be  enforced  by  a  court  of  equity. 

In  the  case  of  Leftwitch  et  als.  vs.  Stovall,  1  Wash.,  303,  de- 
cided at  the  fall  term,  1794.  The  award  was  objected  to  on  the 
ground  that  it  exceeded  the  powers  of  the  arbitrators,  because 
the  award  was  for  tobacco  when  the  writ  demanded  money. 
Held :  The  award  need  not  follow  the  writ,  but  it  is  proper  in- 
asmuch as  it  is  not  contrary  to  the  submission. 

In  the  case  of  Mitchell  vs.  Kelly,  1  Call,  380  (2d  edition,. 
330),  decided  October  30,  1798.  The  question  whether  the  act 
of  Assembly  relating  to  awards  applies  to  orders  of  reference 
during  the  progress  of  suits  was  raised,  but  the  court  refused  to 
decide,  as  it  was  immaterial  to  the  issue.  It  was  held  not  neces- 
sary that  the  award  should  lie  in  court  two  terms  before  judg- 
ment if  the  party  oflfers  exceptions,  for  that  is  a  waiver. 

In  the  case  of  Holcomh  vs.  Flournoy^  2  Call,  433  (2d  edition, 
365),  decided  October  29,  1800,  it  was  held :  An  award  will  not 
be  overturned  on  the  statement  of  the  evidence  which  was  given 
before  the  arbitrators;  there  must  be  legal  grounds. 

In  the  case  of  Boss  vs.  Overton,  3  Call,  309  (2d  edition,  268), 
decided  November  8,  1802,  it  was  held :  The  court  will  not  in- 
terfere to  set  aside  an  award  on  the  ground  of  the  arbitrators 
having  mistaken  the  law  in  a  doubtful  case. 

In  the  case  of  Taylor's  Administrator  vs.  Nicolson,  1  H.  & 
M.,  67,  decided  October  24,  1806,  it  was  held :  No  calculations 
or  grounds  for  an  award  which  are  not  incorporated  in  it,  or 
annexed  to  it  at  the  time  of  dehvery,  are  to  be  regarded  or  re- 
ceived as  reasons  or  grounds  to  avoid  it.  If  an  award  which  is 
good  in  other  respects  contains  a  matter  not  mentioned  in  the 
submission,  it  shall  not  thereby  be  vitiated,  but  the  additional 
matter  ought  to  be  rejected  as  surplusage. 

In  the  case  of  Morris  vs.  Ross,  2  H.  &  M.,  408,  decided  May 
3,  1808,  it  was  held :  •  An  award  ought  not  to  be  set  aside  either 
in  a  court  of  law  or  equity  on  the  ground  of  a  mistake  in  the 
judgment  of  the  arbitrators,  unless  that  mistake  be  very  palpa- 
ble ;    a  mere  difference  of  opinion  between  the  court  and  the 


Citations  to  the  Code  op  Virginia.  645 

arbitrators  in  a  doubtful  case  not  being  sufficient  to  authorize 
such  interference. 

In  the  case  of  Fletcher  vs.  Pollard,  2  H.  &  M.,  544,  decided 
May  20, 1808,  it  was  held :  If  pending  a  suit  in  chancery  brought 
by  one  of  three  mercantile  partners  against  the  other  two  for  a 
settlement  of  the  accounts  of  the  co-parcenary,  the  plaintiff  and 
one  of  the  defendants  agree  to  refer  all  matters  in  controversy 
between  them  to  arbitrators  (whose  award  is  to  be  the  decree  of 
the  court),  according  to  which  agreement  an  order  of  reference 
is  made,  and  the  arbitrators  make  a  report  that  they  had  ex- 
amined and  stated  the  books  of  the  co-parcenary,  and  award 
the  payment  of  certain  sums  by  the  other  defendant  as  the  only 
debtor  to  the  plaintiff  and  to  the  defendant  who  agreed  to  the 
reference,  and  state  that  the  payments  already  made  by  that  de- 
fendant discharge  him  from  any  farther  claim  of  the  plaintiff 
on  account  of  the  co-parcenary,  such  report  ought  to  be  con- 
sidered as  an  award,  and  sufficiently  final  and  good  between 
the  parties  who  agreed  to  the  reference. 

In  the  case  of  JBrickhouse  vs.  Hunter^  Banks  c&  Co,,  4  H.  & 
M.,  363,  decided  October,  1809,  it  was  held :  Although  consent 
of  parties  cannot  give  jurisdiction  to  a  court  of  equity,  yet  (after 
an  injunction  granted  improperly),  if  the  parties  refer  all  matr 
ters  of  difference  between  them  in  that  suit  to  certain  arbitra- 
tors mutually  chosen,  consenting  that  their  award  may  be  made 
a  decree  of  the  court,  such  consent  is  binding;  the  whole  case, 
including  the  question  of  law,  being  thereby  transferred  from 
the  court  to  the  arbitrators.  An  award  is  not  the  less  certain 
and  final  because  the  arbitrators  refer  to  a  report  previously 
made  by  a  commissioner  in  chancery,  and  declared  (in  general 
terms)  their  concurrence  with  it,  instead  of  specifying  the  par- 
ticulars or  substance  thereof  in  the  award  itself ;  nor  because 
they  submit  to  the  court  the  propriety  of  their  award  in  point 
of  law,  and,  as  a  guide  for  the  court  in  deciding  upon  it,  state 
the  grounds  and  reasons  thereof. 

In  the  case  of  ITollingsworth  vs.  Lupton  and  Wife,  4  Munf., 
114,  decided  December  4,  1813,  it  was  held :  If  a  dispute  con- 
cerning the  division  of  a  tract  of  land  under  a  will  be  submitted 
to  arbitration  in  general  terms,  and  an  award  be  made  stating 
that  "from  the  proofs  adduced  to  the  arbitrators,  from  the  tenor 
of  the  will  and  evident  intention  of  the  testator,"  one  of  the 
parties  is  entitled  to  a  certain  number  of  acres,  to  be  divided 
from  the  rest  by  a  specified  line,  and  the  other  to  the  residue 
of  the  tract,  such  award  (being  free  from  objection  in  other  re- 
spects) is  valid,  notwithstanding  the  line  established  by  it  1$ 
different  from  the  dividing  line  mentioned  in  the  wiU. 

In  the  case  of  Ligon  vs.  Ford,  5  Munf.,  10,  decided  January 
17,  1816,  it  was  held :  An  action  of  crim.  con.  being  referred  to 


646  Citations  to  the  Code  of  Virginia. 

arbitration  by  rule  of  court,  if  the  arbitrators  refuse  to  hear  tes- 
timony offered  by  the  defendant  impeaching  the  credit  of  the 
plaintiff's  witnesses,  or  touching  the  deportment  of  the  plaintiff's 
wife  before  her  alleged  seduction,  this  is  such  misconduct  as 
vitiates  their  award,  and  the  court  ought  not  to  decline  hearing 
proof  of  such  misconduct. 

In  the  case  of  Manlove  vs.  Thrift,  5  Munf.,  493,  decided 
March  20,  1817,  it  was  held :  If,  pending  a  suit,  the  parties  ^  / 
an  order  of  court  refer  the  matter  in  dispute  to  arbitrators,  whose 
award  is  to  be  made  the  judgment  of  the  court,  and  afterwards  by 
an  agreement  under  seal  appoint  a  substitute  for  one  of  them^ 
agreeing  that  an  award  to  be  made  by  the  remaining  referees 
and  such  substitute  shall  be  entered  as  the  judgment  of  the 
court,  such  award  may  be  so  entered  without  any  previous 
order  of  court  confirming  the  appointment  of  such  substitute. 

In  the  case  of  Richards  vs.  BrockenhrouglC s  Adfninistrators, 
1  Rand.,  449,  decided  May,  1823,  it  was  held :  Where  parties 
enter  into  arbitration  bond,  referring  a  certain  matter  in  dispute 
to  arbitrators  who  are  to  make  their  award  by  a  certain  day,  and, 
if  they  should  not  agree,  to  an  umpire  chosen  by  them ;  upon 
which  the  arbitrators,  finding  that  they  cannot  agree,  choose  an 
umpire,  who  makes  his  umpirage  before  the  day  appointed  for 
the  arbitrators  to  make  their  award,  such  umpirage  will  be 
good. 

An  award  which  inaccurately  requires  the  surety  in  the  arbi- 
tration bond  to  pay  money  as  well  as  the  principal  will  never- 
theless be  sustained ;  such  a  clause  will  only  be  regarded  as  sur- 
plusage.    Everything  is  to  be  presumed  in  favor  of  an  award. 

In  the  case  of  Miller  vs.  Kennedy,  3  Rand.,  2,  decided  No- 
vember, 1825,  it  was  held :  It  is  not  universally  true  that  notice 
should  be  given  of  the  time  and  place  of  making  an  award.  But  if 
notice  be  necessary,  the  defendant  cannot  avail  himself  of  want 
of  it  where  the  submission  has  been  by  the  mere  act  of  the 
parties,  nor  of  corruption  or  partiality  in  the  arbitrator,  nor  of 
any  other  extrinsic  circumstance  whatever,  in  an  action  on  the 
award,  or  on  a  submission  bond,  but  his  only  redress  is  in  a  court 
of  equity.     Aliter  if  the  submission  be  by  order  of  court. 

In  the  case  of  Head  vs.  Muir  <&  Long,  3  Rand.,  122,  decided 
January,  1825,  it  was  held :  A  court  of  equity  ought  not  to  set 
aside  an  award  for  objections  which  might  have  availed  in  a 
court  of  law,  and  which  a  party  failed  to  urge  there  without  a 
good  excuse  for  the  omission. 

An  award  cannot  be  set  aside  either  in  law  or  equity,  except 
for  errors  apparent  on  its  face,  misconduct  in  the  arbitrators, 
some  palpable  mistake,  or  fraud  in  one  of  the  parties. 

In  the  case  of  Smith  et  als.  vs.  Smith,  etc.,  4  Rand.,  95,  de- 
cided February,  1826,  it  was  held :  When  parties  submit  a  ques- 


Citations  to  the  Code  of  Virginia.  647 

tion  of  law  alone  to  arbitration,  the  award  is  binding,  though 
contrary  to  law. 

Awards  are  to  be  construed  liberally,  and,  therefore,  the  terms 
"  heirs  at  law,"  in  an  award  respecting  personal  estate,  may  be 
construed  to  mean  "all  of  a  testator's  children  living,  and  the 
child  or  children  who  died  in  his  lifetime." 

Equity  has  jurisdiction  to  decree  specific  execution  of  an 
award  where  the  remedy  at  law  is  inadequate. 

In  the  case  of  Mison  vs.  Berry,  4  Rand.,  275,  decided  May, 
1826,  it  was  held :  Where  a  submission  is  made  of  all  matters 
in  difference  between  two  parties,  in  a  particular  suit  then 
pending,  to  two  persons  and  such  umpire  as  they  shall  choose, 
and  their  award  to  be  made  the  judgment  of  the  court, 
and  the  arbitrators  and  umpire  act  together  and  make  a  joint 
award,  such  award  will  be  good.  Although  the  award  does  not 
state  that  the  third  person  who  signed  the  award  has  been 
chosen  by  the  arbitrators  as  umpire,  yet  that  fact  may  be  proved 
by  other  evidence.  If  the  third  person  who  signed  the  award 
was  a  mere  stranger,  this  would  not  vitiate  the  award. 

In  the  case  of  Grahams  Administrators  vs.  Pense,  6  Rand., 
629,  decided  October,  1828,  it  was  held :  Although  the  submis- 
sion of  a  case  to  arbitration,  where  a  suit  is  depending  in  a 
court  of  law,  does  not  come  within  the  provisions  of  the  statute 
concerning  awards,  yet  the  court  (in  which  the  submission  is 
made  a  rule  of  court)  has  a  general  superintendence  over  the 
award  made  by  virtue  of  such  submission,  and  may  annul  it  for 
misbehavior  of  the  arbitrators,  mistakes  apparent  on  its  face, 
etc.  It  is  unnecessary  in  such  case  to  resort  to  a  court  of 
equity  to  annul  it. 

Two  arbitrators  meet  to  decide  a  case  referred  to  them  on 
the  day  appointed,  and  continue  the  case  for  good  cause  shown 
by  the  defendant.  On  the  same  day  they  determine  that  they 
will  no  longer  act  as  arbitrators,  and  give  notice  of  their  declen- 
sion to  the  parties ;  but  on  being  pressed  by  the  plaintiff  they 
are  prevailed  on  by  him  to  act  again,  and  authorize  the  plaintiff 
to  give  notice  to  the  defendant  of  the  time  and  place  for  arbitra- 
tion ;  the  defendant  on  the  day,  and  at  the  place,  protests  against 
their  power  to  act,  and  refuses  to  submit  his  case  or  his  evi- 
dence to  them.  The  arbitrators,  however,  proceed  to  make  up 
an  award  on  the  plaintiff's  ex  parte  evidence.*  This  is  such 
misbehavior  as  should  annul  the  award. 

In  the  case  of  May  vs.  Yancey,  4  Leigh,  362,  decided  March, 
1833.  Award  of  arbitrators  is  sought  to  be  set  aside  on  the 
ground  that  the  conduct  of  the  arbitrators  had  the  effect  of  a 
surprise  on  one  of  the  parties,  and  so  Wiis  misconduct,  though 
no  partiality  or  corruption  was  imputed  to  them. 

In  the  case  of  Lee  vs.  latillo,  4  Leigh,  436,  decided  April, 


648  Citations  to  the  Code  of  Virginia. 

1833.  Award  of  arbitrators  is  set  aside  on  the  ground  of  circum- 
stances in  their  conduct  amounting  to  misbehavior,  though  not 
to  corruption,  and  resulting  in  injustice  to  one  of  the  parties. 

In  the  case  of  Wheatley  vs.  Martin's  Administrator,  6  Leigh, 
62,  decided  February,  1835.  Submission  to  the  arbitration  of 
three  or  any  two ;  two  join  in  the  award,  giving  notice  of  the 
award  concluded  and  being  about  to  be  returned,  to  the  third, 
who  does  not  join  in  it.  Held:  This  is  no  objection  to  the 
validity  of  the  award. 

A  court  of  equity  will  not  set  aside  an  award  for  objections 
which,  if  available  at  all,  were  available  at  law,  but  which  the 
party  did  not  avail  himself  of  at  law,  there  being  no  surprise 
proved,  though  it  is  alleged,  and  no  fraud  proved  or  alleged. 
It  is  equally  the  rule  of  equity  as  of  law,  that  the  reasons  for 
setting  aside  an  award  must  appear  on  its  face,  or  there  must  be 
misbehavior  in  the  arbitrators,  or  some  palpable  mistake. 

See  the  case  of  Martin  vs.  Martin,  12  Leigh,  495,  cited  a7ite. 
Section  3006. 

In  the  case  of  Byars  vs.  Thompson,  12  Leigh,  550,  decided 
August,  1841.  The  award  mis-recites  the  date  of  the  submission 
to  be  the  18th  of  July  instead  of  the  14th  of  September,  1821. 
Held :  This  mis-recital  does  not  invalidate  the  award  made  in 
other  respects  pursuant  to  the  submission. 

It  is  not  necessary  to  the  validity  of  an  award  that  it  should 
be  delivered,  unless  it  is  expressly  provided  by  the  submission 
that  delivery  shall  be  necessary  to  its  validity. 

Arbitrators,  in  their  award,  reserve  to  themselves  a  right  to  re- 
consider a  claim  which  they  allow  the  party  against  whom  they 
award,  and  then  complete  the  award  without  reconsidering  this 
claim.  Held:  The  reservation  is  void,  and  the  award  good 
for  the  sum  awarded.  In  an  action  of  debt  for  the  penalty  of 
an  arbitration  bond,  the  declaration  sets  out  the  submission,  and 
so  much  of  the  award  as  entitles  the  plaintiff  to  his  action. 
Held:  It  is  not  necessary  in  such  case  that  the  declaration 
should  set  out  the  whole  award. 

In  the  case  of  Pollard  vs.  Lumpkin,  6  Grat.,  398,  decided 
October,  1849,  it  was  held :  There  being  no  mistake  on  the  part 
of  the  arbitrators  as  to  the  nature  or  contents  of  the  award, 
when  it  was  signed  and  published  by  them  as  their  award, 
though  one  of  the  arbitrators,  after  the  termination  of  his 
authority,  may  think  that  the  principles  by  which  it  was  gov- 
erned should  have  led  him  to  a  different  result,  such  evidence 
is  not  of  itself  sufficient  to  set  aside  the  award  on  the  ground  of 
mistake,  such  mistake  not  appearing  on  the  face  of  the  award, 
or  from  any  paper  or  document  connected  with  or  referred  to 
therein,  and  all  mistake  being  denied  by  the  other  arbitrator. 

In  the  case  of  Basset's  Administrators  vs.  Curininghanis  Ad- 


Citations  to  the  Code  of  Virginia.  649 

-ministrators,  9  Grat.,  684,  decided  March,  7,  1853.  Six  causes 
are  referred  by  order  of  the  court  to  D.  and  L.,  and  in  case  of 
disagreement  between  them,  then  to  T.  as  the  umpire  to  decide 
such  difference,  for  their  arbitrament  and  award,  which,  when 
made  by  them  or  their  umpire,  and  duly  certified  by  them,  are  to 
be  entered  as  the  judgment  of  the  court.  Upon  the  disagreement 
of  the  arbitrators  D.  and  L.,  the  whole  matter  is  to  be  adjudged 
by  the  umpire  T.,  and  his  decision  is  valid  and  conclusive, 
though  he  differs  from  both  the  arbitrators. 

The  arbitrators  and  umpire  sit  together  and  hear  the  evidence, 
of  which  a  note  is  taken  by  one  for  the  benefit  of  all.  Upon 
the  disagreement  of  the  arbitrators  the  umpire  makes  his  award, 
in  which  he  does  not  refer  to  any  of  the  evidence,  or  state  the 
principles  or  facts  upon  which  it  is  based ;  but  in  sending  his 
award  to  the  clerk  of  the  court  in  which  the  causes  are  pending 
he  sends  with  it  all  the  papers  and  the  note  of  the  evidence 
taken  before  the  arbitrators.  These  papers  and  evidence  are 
not  a  part  of  the  award,  or  connected  with  it,  so  that  they  may 
be  considered  upon  a  motion  to  set  aside  the  award. 

The  arbitrators  differing  in  opinion,  each  made  out  his  own 
report  of  his  opinion  upon  the  different  questions  arising  in  the 
clause,  and  in  this  there  was  no  error,  though,  if  it  was  error  in 
them,  it  would  not  affect  the  validity  of  the  award  made  by  the 
umpire.  Evidence  offered  before  the  arbitrators  and  umpire 
^vas  excepted  to,  but  it  was  heard,  reserving  the  question  of  its 
competency  until  they  were  ready  to  decide  the  case.  The  ques- 
tion was  not  formally  acted  on,  but  the  arbitrators  having  been 
the  counsel  in  the  cause,  and  the  umpire  a  distinguished  lawyer, 
it  will  be  presumed  in  the  absence  of  evidence  to  the  contrary, 
that  as  both  arbitrators  and  umpire  were  selected  in  part  for 
their  high  legal  attainments,  all  improper  testimony  was  dis- 
carded from  their  consideration  in  making  their  decisions. 

A  mere  mistake  of  date  from  which  interest  upon  a  particular 
•debt  is  to  run,  obvious  on  the  face  of  the  award,  is  not  ground 
for  setting  it  aside ;  the  party  in  whose  favor  it  is,  consenting 
that  it  shall  be  corrected  in  the  judgment  entered  upon  the  award. 

An  error  of  judgment  on  the  part  of  the  umpire  in  regard  to 
the  facts  is  not  ground  for  setting  aside  the  award. 

In  the  case  of  Lunsford  vs.  Smith,  12  Grat.,  554,  decided 
September  7,  1855,  it  was  held :  Certain  legal  questions  are 
submitted  by  parties  to  a  controversy  to  an  arbitrator,  and  they 
agree  to  be  bound  by  his  award.  Upon  a  suit  being  afterwards 
instituted  by  one  of  the  parties  against  the  other  in  relation  to 
the  subject-matter  of  the  submission,  the  award  of  the  arbi- 
trator deciding  the  questions  submitted  to  him  is  the  law  of  the 
-case. 

In  the  case  of  Crane's  Guardian  vs.  Crane,  21  Grat.,  579,  de- 


650  Citations  to  the  Code  of  Virginia. 

cided  December  13,  1871,  it  was  held :  There  cannot  be  an  ap- 
peal from  the  award  of  an  arbitrator,  unless  it  be  made  the- 
judgment  or  decree  of  the  coiu't  from  which  it  is  taken ;  and  the 
mere  copy  of  the  award  in  the  proceedings  of  the  court,  though 
they  be  signed  by  the  judge,  does  not  make  it  a  judgment  or 
decree  of  the  court. 

In  the  case  of  Moore  vs.  Luckless' s  Next  of  Kin,  23  Grat.,  160,. 
decided  January,  1873,  it  was  held:  Under  the  statute  an  award 
cannot  be  set  aside  in  a  common  law  court,  except  for  error  ap- 
parent on  the  face  of  the  award,  or  unless  it  has  been  procured 
by  corruption  or  other  undue  means  or  misbehavior  in  the  ar- 
bitrators. 

In  the  case  of  Fonder  vs.  Coffman  et  aU.,  23  Grat.,  871,  de- 
cided September,  1873,  it  was  held:  Arbitrators  are  required 
to  return  their  award  by  a  certain  day  under  their  hand  and 
seals.  They  prepare  their  award,  and  the  day  before  they  are 
required  to  return  it  one  of  them  hands  it  to  the  counsel  of  the 
plaintiff.  He  sees  that  they  have  omitted  the  seals,  and  he  re- 
turns it  to  them,  and  requests  that  they  will  add  the  seals  and 
insert  the  word  "seal"  in  the  body  of  the  instrument.  This 
they  do,  and  then  dehver  it  on  the  day  to  which  they  are  lim- 
ited by  the  submission.     The  award  is  valid. 

In  the  case  of  Willoughhy  vs.  Thow.as,  24  Grat.,  521,  decided 
March,  1874,  it  was  held:  If  an  arbitrator,  intending  to  decide 
the  questions  submitted  to  him  according  to  law,  states  in  his 
award  two  propositions  of  law,  one  of  which  is  erroneous,  and 
the  other  is  correct  upon  the  facts  as  he  may  consider  them  to 
be,  a  court,  in  passing  upon  the  validity  of  the  award,  will  pre- 
sume that  his  award  is  based  upon  the  latter;  and  the  court 
cannot  inquire  whether  he  took  a  correct  view  of  the  facts. 

In  the  case  of  Pollock's  Administrator  vs.  Sutlierlin,  25  Grat., 
78,  decided  April  23,  1874,  it  was  held:  Upon  the  question 
whether  an  award  is  within  the  terms  of  the  subscription,  all 
fair  presumptions  shall  be  made  in  favor  of  the  award ;  and  if 
on  any  fair  presumption  the  award  may  be  brought  within  the 
submission,  it  shall  be  sustained. 

In  the  case  of  Adams  vs.  Hubbard,  25  Grat.,  129,  decided 
June  17,  1874.  An  injunction  to  a  judgment  is  obtained,  and 
whilst  it  is  pending,  the  matter  in  dispute  is  referred  to  arbitra- 
tors, who,  after  reading  the  pleadings  and  depositions,  and  hear- 
ing oral  evidence,  including  that  of  the  parties,  make  an  award 
that  the  injunction  be  dissolved.  On  a  motion  to  set  aside  the 
award  on  the  ground  of  after-discovered  evidence,  held:  The 
rules  governing  courts  of  equity  in  awarding  new  trials  in  ac- 
tions at  law  on  the  ground  of  after-discovered  evidence  apply 
equally  to  motions  to  set  aside  an  award  on  that  ground.  Where 
all  the  evidence  that  was  before  the  arbitrators  is  not  before  the 


Citations  to  the  Code  of  Virginia.  651 

court  on  the  motion  to  set  aside  the  award,  the  motion  must  faiL 
Though  the  evidence  in  the  cause  before  the  reference  was  made  . 
might  have  warranted  the  court  to  direct  a  new  trial,  yet  the 
award  is  in  fact  a  new  trial,  and  the  party  is  not  entitled  to 
another  trial  on  that  evidence. 

In  the  case  of  Lynchburg  Female  Orphan  Asylum  vs.  Ford, 
25  Grat.,  566,  decided  December,  1874.  F,  contracts  to  make, 
burn,  and  deliver  to  L.  a  certain  quantity  and  quality  of  bricks, 
80  per  cent,  of  the  price  to  be  paid  when  they  are  ready  for  de- 
livery, according  to  kiln  measure,  the  remaining  20  per  cent, 
to  be  paid  when  the  bricks  are  laid  in  the  wall  of  the  building 
which  L.  proposes  to  erect.  The  bricks  have  been  made  and 
the  80  per  cent,  paid,  but  they  are  still  in  the  kiln,  when  the 
architect  of  L.  rejects  a  large  portion  of  them  as  not  being  of 
the  quality  contracted  for.  The  quality  of  the  bricks  is  the 
subject  of  difference,  but  in  their  submission  to  arbitration  they 
say,  "  whereas  certain  differences  have  arisen  as  to  the  qualities 
of  the  bricks  manufactured  under  said  contract,  and  as  to  the 
construction  of  said  contract."  Held :  The  latter  clause  will  be 
held  to  refer  to  the  construction  in  relation  to  the  qualities  of 
the  bricks ;  and  the  arbitrators  awarding  the  payment  by  L.  to 
F.  of  the  20  per  cent,  reserved  is  beyond  the  submission.  The 
submission  is  not  to  be  extended  by  the  counsel  of  F.  arguing 
in  the  presence  of  the  counsel  of  L.  that  it  embraces  the  ques- 
tion of  the  payment  of  the  reserved  20  per  cent.  That  part  of 
the  award  in  relation  to  the  quality  of  the  bricks  being  entirely 
distinct  and  not  dependent  upon  that  part  directing  the  pay- 
ment of  the  reserved  20  per  cent.,  that  part  may  be  sustained^ 
whilst  the  latter  part  is  set  aside. 

In  the  case  of  City  of  Portsmouth  vs.  Norfolk  County,  31 
Grat.,  727,  decided  March,  1879.  The  county  of  Norfolk  and 
the  city  of  Portsmouth,  in  March,  1877,  enter  into  an  agreement 
by  which  they  submit  all  matters  in  dispute  between  them  to 
the  arbitration  of  R.  H.  Baker,  of  the  city  of  Norfolk,  and  J.  R. 
Kilby,  of  Nansemond  county,  men  of  high  standing  as  men  and 
lawyers.  The  agreement  states  the  subjects  of  dispute  under 
fourteen  heads,  and  they  include  suits  both  at  law  and  in  equity^ 
questions  of  law  and  fact,  questions  in  relation  to  lands,  docks, 
ferries,  and  money,  and  the  parties  waive  the  plea  of  the  statute 
of  limitations,  and  all  other  technical  pleas  which  would  inter- 
fere in  any  manner  with  the  award  of  the  arbitrators  except 
upon  the  very  right  and  justice  of  the  case  as  to  all  matters  in 
controversy,  the  award  to  be  entered  of  record  in  the  Circuit 
Court  of  the  county  of  Noifolk,  and  the  Court  of  Hustings  for  the 
city  of  Portsmouth.  In  June,  1877,  the  arbitrators  made  their 
award,  passing  upon  each  of  the  subjects  submitted  to  them. 
Upon  a  summons  to  the  city  of  Portsmouth  to  show  cause 


652  Citations  to  the  Code  of  Vieginia. 

against  entering  the  award  as  the  judgment  of  the  Circuit  Court 
of  Norfolk  county,  the  city  of  Portsmouth  filed  numerous  ex- 
-ceptions  to  the  award,  which  were  overruled  by  the  court. 
Upon  appeal,  held :  It  is  manifest  from  all  the  papers  in  the 
case  that  the  arbitrators  intended  to  settle  all  matters  of  law 
and  fact  upon  the  very  right  and  justice  of  the  case.  But  con- 
ceding that  they  intended  to  decide  according  to  law,  and  that 
they  have  not  done  so  in  every  instance,  it  does  not  follow  that 
the  award  is  invalid.  The  court  does  not  set  aside  an  award 
merely  because  it  may  differ  with  an  arbitrator  as  to  the  law  of 
the  case. 

Where  the  merits  in  law  and  in  fact  are  referred  to  an  arbi- 
trator of  competent  knowledge,  and  there  is  not  any  question 
reserved  by  him,  the  court  will  not  open  the  award  unless  some- 
thing can  be  alleged  amounting  to  a  perverse  misconstruction 
of  the  law,  or  misconduct  on  the  part  of  the  arbitrator. 

Where  arbitrators  mean  to  decide  according  to  law,  and  they 
mistake  the  law  in  a  palpable  material  point,  the  award  will  be 
set  aside ;  but  their  decision  upon  a  doubtful  point  of  law,  or  in 
case  where  the  question  of  law  is  designedly  left  to  their  judg- 
ment, that  will  generally  be  held  conclusive.  It  must  appear  they 
grossly  mistook  the  law ;  and  the  court  will  not  interfere  merely 
because  it  would  have  given  a  different  decision  in  the  particu- 
lar case.  It  does  not  appear  that  the  arbitrators  have  com- 
mitted any  very  material  palpable  errors  in  the  various  points 
decided  by  them. 

In  the  case  of  Shipman  vs.  Fletcher,  82  Va.,  601,  decided 
December  2,  1886,  it  was  held :  An  award  will  be  set  aside  on 
the  ground  of  circumstances  in  the  conduct  of  the  arbitrators 
which  amount  to  a  misbehavior  and  result  in  injury  to  one  of 
the  parties. 

Small  irregularities  are  often  fatal  to  an  award,  and  a  fortiori 
are  such  instances  of  misconduct  as  are  exhibited  by  the  arbi- 
trators when  they  exclude  both  parties  against  the  consent  of 
one  during  the  examination  of  the  witnesses  or  other  evidence, 
or  the  arguments  of  the  counsel,  or  when  they  employ  others  to 
examine  the  books  and  papers  of  the  accounts  of  the  parties, 
and  to  report  conclusions,  which,  without  examining  the  vouchers, 
the  arbitrators  adopt,  and  make  those  conclusions  the  basis  of 
the  award.     This  is  the  case  cited  from  11  Ya.  Law  Journal,  95. 

Section  3010. 
In  the  case  of  Thompson's  Administrator  vs.  Thompson's 
Executor,  6  Munf.,  514,  decided  March  4,  1820,  it  was  held: 
The  deputy  of  a  sheriff,  to  whom  administration  of  the  estate  of 
a  deceased  person  has  been  committed,  is  not  authorized  to  sub- 
mit to  arbitration  a  suit  revived  in  the  name  of  the  sheriff  as 


Citations  to  the  Code  of  Virginia.  653 

administrator  to  which  the  deceased  in  his  lifetime  was  a 
party. 

In  the  case  of  Wheatley  vs.  Martin's  Administrator,  6  Leigh, 
62,  decided  February,  1835,  it  was  held :  An  executor  has  a 
right  to  submit  any  claim,  for  or  against  his  testator's  estate, 
to  arbitration ;  and  the  award  made  pursuant  to  such  commis- 
sion binds  the  estate ;  but  if  injustice  be  thereby  done  the  tes- 
tator's estate  the  executor  may  be  chargeable  therefor,  as  for 
a  devastavit. 

In  the  case  of  N^elsoiis  Administrator  vs.  Cornwell,  11  Grat., 
724,  decided  October,  1854,  it  was  held :  An  executor  making 
an  improvident  submission  to  award  as  to  a  part  of  his  testa- 
tor's estate  which  has  been  specifically  bequeathed,  and  the  re- 
sult of  the  submission  being  that  the  property  is  left  in  his 
hands  as  his  own  property,  and  he  is  compelled  to  pay  for  it,  the 
legatee  is  not  precluded  by  the  award  from  recovering  the  spe- 
cific property. 


TITLE  XLV. 
CHAPTER  CXLIV. 

Section  3012. 
See  the  references  given  to  Sections  3058,  3080,  3086,  3094, 
and  3218. 

CHAPTER  CXLY. 

In  the  case  of  The  Commonwealth  vs.  Birchett,  2  Va.  Cases, 
51,  decided  by  the  General  Court,  it  was  held :  An  information 
in  the  nature  of  a  quo  warranto,  though  in  form  a  criminal 
proceeding,  yet  is  in  substance  a  civil  proceeding  for  the  trial  of 
a  civil  right,  and  therefore  the  statute  which  limits  the  prosecu- 
tion of  informations  on  any  penal  law  to  one  year  does  not  ap- 
ply to  such  information. 

In  the  case  of  21ie  Commonwealth  vs.  James  River  Improve- 
ment Company,  2  Va.  Cases,  190,  decided  by  the  General  Court, 
it  was  held :  An  information  in  the  nature  of  a  writ  of  quo  war- 
ranto, is  the  proper  remedy  by  which  to  try  and  decide  whether 
the  James  River  Company's  charter  ought  to  be  nullified  and 
vacated,  or  whether  it  has  forfeited  its  privilege  of  receiving 
toUs. 

The  Commonwealth  being  a  stockholder  in  a  corporation  and 
partner  with  individual  stockholders  is  no  reason  why  she 
should  not,  in  her  sovereign  capacity,  proceed  by  way  of  infor- 
mation in  the  nature  of  a  writ  of  quo  warranto  against  the  cor- 
poration for  the  purpose  either  of  destroying  its  character  or 
depriving  it  of  any  of  its  franchises. 


654  CrrATioNS  to  the  Code  of  Virginia. 

The  information  aforesaid  will  lie  against  a  corporation  eo 
nomine  to  try  whether  the  said  company  has  forfeited  its  fran- 
chise of  being  a  corporation,  as  well  as  of  its  other  franchises 
and  liberties. 

Where  the  Commonwealth  proceeds  by  an  information  in  the 
nature  of  a  quo  warranto  against  a  corporation  in  the  superior 
court  of  law  in  which  the  president  and  directors  of  the  corpora- 
tion reside,  she  has  jurisdiction  to  grant  the  rule  and  try  the 
cause,  although  the  acts  of  violation  of  duty,  which  are  the 
grounds  of  the  proceeding  may  have  been  committed  in  other 
countries. 

In  the  case  of  Royal  vs.  Thomas^  28  Grat.,  130,  decided  Feb- 
ruary 1,  1877,  it  was  held:  Under  the  Constitution  and  statutes 
of  Virginia  a  party  who  has  aided  and  assisted  in  a  duel  fought 
with  deadly  weapons  may  be  removed  from  office  by  a  proceed- 
ing by  quo  warranto,  or,  if  that  writ  be  not  in  use,  by  informa- 
tion in  the  nature  of  a  quo  warranto,  though  he  has  not  been 
convicted  of  the  offence  in  any  criminal  proceeding  against  him. 

In  the  Bland  and  Giles  County  Judge  case,  33  Grat.,  443,  de- 
cided July,  1880.  In  December,  1874,  E.  was  elected  by  the 
legislature  judge  of  the  county  courts  of  G.  and  B.  counties, 
and  on  the  twelfth  of  the  same  month  he  was  commissioned  as 
such,  the  commission  stating  that  he  was  elected  to  fill  the  un- 
expired term  of  his  predecessor.  In  December,  1879,  W.  was 
elected  judge  of  the  same  counties,  and  was  commissioned  as 
such  on  the  20th  of  the  same  month.  Without  objection  on  the 
part  of  E.,  W.  entered  at  once  upon  the  duties  of  the  office,  and 
E.  qualified  as  an  attorney,  and  practiced  in  both  of  the  courts 
over  which  W.  presided,  until  the  April  term,  1880,  when,  the 
court  of  appeals  having  decided  that  the  terms  of  all  the  county 
judges  in  Virginia,  whether  elected  to  fill  vacancies  or  not,  com- 
menced on  the  first  day  of  January  next  following  their  appoint- 
ment, and  were  for  the  whole  term  of  six  years,  as  fixed  by  the 
Constitution,  E.  appeared  and  protested  that  he  was  the  lawful 
judge.  This  claim  W.  refused  to  recognize,  principally  on  the 
ground  that  E.,  by  acquiescing  in  the  assumption  of  the  office 
by  W.  and  becoming  a  practicing  attorney  in  this  court,  held 
an  office  incompatible  with  the  office  of  judge,  and  by  this  con- 
duct had  forfeited  and  abandoned  his  said  office.  On  quo  war- 
ranto by  E.  against  W.,  held:  E.  was  entitled  to  the  office,  and 
the  fact  that  he  only  yielded  to  the  legislative  and  executive  con- 
struction of  the  Constitution  until  the  question  was  settled  by 
the  Supreme  Court  was  no  abandonment  or  forfeiture  of  his 
office.  An  attorney-at-law  is  not  an  officer.  An  office  is  termi- 
nated proprio  vigore  by  resignation,  expiration  of  term,  and  re- 
moval by  competent  authority.  But  in  other  cases  the  office  is 
not  determined  ipso  facto  by  the  occurrence  of  the  cause.  There 


Citations  to  the  Code  of  Virginia.  655 

must  be  a  judgment  of  a  motion  after  judicial  ascertainment  of 
the  fact,  which  may  be  by  indictment  or  information,  by  writ  of 
<luo  warranto,  or  by  impeachment.  The  writ  of  quo  loarranto  is 
not  abolished  in  Virginia,  and  the  circuit  courts  have  jurisdic- 
tion of  the  same.  W.,  having  waived  the  filing  of  an  informa- 
tion in  the  court  below,  cannot  be  heard  to  complain  of  any 
irregularity  on  this  ground  in  the  appellate  court. 

In  the  case  of  Pixley  et  als.  vs.  Roanoke  Navigation  Co.  et 
als.,  75  Va.,  320,  decided  March  17,  1881,  it  was  held :  A  court 
of  equity  has  no  jurisdiction  to  restrain  a  navigation  company 
from  collecting  tolls  on  the  streams  to  which  the  charter  refers, 
on  the  ground  that  the  company  had  failed  to  improve  the 
streams  as  their  charter  prescribed,  or  to  keep  them  in  order. 
The  only  mode  of  proceeding  against  a  corporation  in  such 
case  is  by  quo  warranto  at  the  suit  of  the  Commonwealth. 

In  the  case  of  Kilpatrick  et  als.  vs.  Smith  et  als.,  11  Va.,  347, 
decided  March  29,  1883 :  Where  title  to  office  is  the  point  in 
controversy,  the  remedy  is  not  by  injunction,  but,  at  law,  by  in- 
formation in  the  nature  of  quo  warranto.  In  1870  the  board  of 
education  appointed  E.  and  five  others  trustees  for  the  city  of 
Portsmouth — three  for  each  ward.  The  city  council  failed  to 
divide  them  into  three  classes.  They  continued  until  June, 
1882,  when  the  city  council  created  a  new  board  of  school  trus- 
tees. In  July,  1882,  the  board  of  education  appointed  K.  and 
eleven  others  trustees — three  for  each  ward,  the  wards  having 
been  increased  to  four — for  said  city,  who  duly  qualified  and 
entered  upon  their  duties.  In  August,  1882,  E.  and  the  five 
other  appointees  of  the  city  council  obtained  from  the  judge  of 
the  hustings  court  of  Portsmouth  an  injunction  inhibiting  K. 
and  his  co-trustees  from  acting  as  members  of  the  school  board 
of  Portsmouth,  etc.  Defendants  demurred  and  answered.  The 
hustings  court,  on  the  28th  of  December,  1882,  hearing  the 
cause,  overruled  the  demiirrer,  and  perpetuated  the  injunction. 
On  appeal  to  this  court,  it  was  held : 

1.  As  this  question  involved  the  question  of  title  to  office,  an 
injunction  was  not  the  proper  remedy,  and  the  demurrer  to  the 
bill  should  have  been  sustained  and  the  bill  dismissed. 

2.  The  appointment  of  E.  and  his  five  associates  by  the  city 
council  was  without  authority  of  law,  and  was  void. 

3.  The  appointment  of  K.  and  his  eleven  co-trustees  by  the 
board' of  education  was  pursuant  to  law,  and  was  valid. 

Section  3023. 
See  references  to  Sections  3058,  3080,  and  3217. 


656  Citations  to  the  Code  op  Virginia. 

CHAPTER   CXLVI. 

Section  3029. 

In  the  case  of  Armstrong  vs.  Stone  et  iix.,  9  Grat.,  102,  de- 
cided August  2, 1852,  it  was  held :  The  petition  for  a  writ  of  AaJea*- 
corpus  to  obtain  possession  of  a  child  may  be  in  the  name  of  the 
infant  by  its  next  friend,  or  in  the  name  of  the  person  claiming 
the  possession ;  and  when  it  is  the  mother  of  the  child  that  is 
claiming  the  possession,  and  she  is  a  married  woman,  it  may  be 
in  the  names  of  her  husband  and  herself.  The  proper  office  of 
the  writ  of  habeas  corpus  is  to  release  from  illegal  restraint ;  and 
when  the  party  is  of  years  of  discretion  and  sui  juris,  nothing 
more  is  done  than  to  discharge  him ;  but  if  he  be  not  of  an  age  to 
determine  for  himself,  the  court  or  judge  must  decide  for  him, 
and  make  an  order  for  his  being  placed  in  the  proper  custody ;. 
and  to  enable  it  to  do  so,  must  determine  to  whom  the  right  to 
the  custody  belongs.  The  father  being  dead,  the  mother  is  en- 
titled to  the  custody  as  of  right,  and  she  does  not  lose  this  right 
by  a  second  marriage ;  but  when  she  is  seeking  by  the  "\\Tit  of 
habeas  corpus  to  have  the  child  placed  in  her  custody,  the  court 
may  exercise  its  discretion,  and  determine  whether,  under  all 
the  circumstances,  it  is  best  for  the  infant  that  he  should  be 
assigned  to  the  custody  of  the  mother. 

In  the  case  of  Leftwich  vs.  The  Commonwealth,  20  Grat.,  716, 
decided  November,  1870,  it  was  held :  When  a  prisoner  has 
been  taken  to  the  penitentiary  before  the  judgment  against 
him  is  reversed  by  the  court  of  appeals,  that  court  will  bring 
him  before  them  by  habeas  corpus,  and  discharge  him. 

In  the  case  of  Jones  vs.  The  Comm^onwealth,  20  Grat.,  848, 
decided  March,  1871,  it  was  held:  The  prisoner  being  in  the 
penitentiary,  he  will  be  brought  before  the  appellate  court  by 
writ  of  habeas  corpus,  and  committed  to  the  sheriff  of  the  county 
of  Henrico,  to  be  taken  back  to  the  county  from  whence  he  was 
sent. 

The  reference  to  19  Grat.,  676,  is  an  error. 

The  case  of  Meredith^  ex  parte,  33  Grat.,  119,  was  a  case  of 
habeas  corpus,  but  as  it  was  only  for  the  purpose  of  determining 
who  was  county  judge  in  a  certain  county  it  is  no  authority. 

In  the  case  of  Ex  Parte  Hollins,  80  Ya.,  314,  decided  March 
19,  1885,  it  was  held :  The  remedy  for  mere  errors  in  proceed- 
ings of  courts  of  competent  jurisdiction  is  by  writ  of  error  or 
appeal,  and  not  by  writ  of  habeas  corpus. 

In  the  case  of  Coffee  vs.  Black,  82  Va.,  567,  decided  Novem- 
ber 18,  1886,  it  was  held :  A  case  where  at  the  death  of  the 
mother  the  father  transferred  his  daughter,  then  three  years  oM, 
to  her  mother's  sister,  who  reared  her  properly  and  made  her 
happy,  and  was  desirous  and  able  to  continue  so  to  do,  and  the 


Citations  to  the  Code  of  Virginia.  657 

child  was  lotli  to  leave  her  aunt.  After  several  years,  the  father, 
by  writ  of  habeas  corpus,  sought  to  recover  custody.  It  ap- 
peared that  the  change  was  calculated  not  to  promote  the 
child's  welfare.  On  appeal,  held:  Under  the  circumstances 
the  situation  of  the  child  should  not  be  changed,  and  the  writ 
should  be  dismissed.  This  is  the  case  cited  from  11  Va.  Law 
Journal,  103. 

Section  3035. 
In  the  case  of  Ex  Parte  Marx,  86  Va.,  40,  decided  April  18, 
1889,  it  was  held :  This  section  providing  for  affidavits  refers 
only  to  the  illegality,  not  the  irregularity,  of  the  prisoner's  de- 
tention, and  does  not  authorize  a  review  of  the  sufficiency.  A 
writ  of  habeas  corpus  is  not  a  writ  of  error,  which  is  the  remedy 
for  mere  errors  in  proceedings  of  courts  of  competent  jurisdic- 
tion. 


TITLE  XLVI. 

CHAPTER  CXLVIL 

Section  3045. 
In  the  case  of  Head  vs.  Commoiiwealth,  22  Grat.,  924,  decided 
December  11,  1872,  it  was  held,  p.  952-'54 :  Sunday  is  not  to  be 
counted  as  one  of  the  days  of  the  term  of  a  court. 

Section  3046. 
See  the  references  given  to  Sections  3218  and  4016. 

Section  3047. 
In  the  case  of  Ayres  {Administrator^)  et  als.  vs.  Burke  et  als., 
82  Va.,  338,  decided  Septen^ber  16,  1886,  it  was  held:  After 
judgment  is  barred,  if  it  be  revived  by  scire  facias  through  col- 
lusion between  creditor  and  debtor,  a  court  of  equity,  in  a  suit 
to  enforce  the  liens  against  the  debtor's  estate,  will  not  give 
effect  to  the  revival  so  as  to  affect  the  rights  of  other  lien  cred- 
itors of  said  debtor,  though  it  be  effectual  against  himself. 

Section  3049. 

In  the  case  of  Smith  vs.  The  Commonwealth,  75  Va.,  904,  de- 
cided November,  1881,  it  was  held :  This  act  is  constitutional. 

In  the  case  of  Oresham  vs.  Ewell  {Judge),  85  Va.,  1,  decided 
June  6,  1888.  The  county  judge  of  one  county  presided  at  the 
trial  of  a  cause  in  another  county  without  entering  upon  record 
that  the  regular  judge  (personally  present)  was  iu  his  opinion 
sb  situated  as  to  make  it  improper  for  him  to  preside.  Held ; 
The  judgment  is  void,  and  its  enforcement  should  be  restrained 
by  a  writ  of  prohibition. 
42 


658  Citations  to  the  Code  of  Virginia. 

Section  3054. 
In  the  case  of  Cluverius  vs.  The  Commonwealth,  81  Ya.,  787, 
decided  Ma}^  6,  1886,  it  was  held:  Under  this  section  corpora- 
tion courts  have  the  authority  to  continue  a  term  from  day  to 
day  into  the  next  succeeding  month,  and  to  change  accordingly 
the  day  for  the  commencement  of  the  succeeding  term. 

Section  3055. 
In  the  case  of  Tremaine  vs.  The  Commonwealth,  25  Grat.,  987, 
decided  January  14,  1875,  it  was  held :  Under  this  section  corpo- 
ration courts  in  cities  and  towns  having  a  population  of  more 
than  five  thousand  have  the  same  jurisdiction  to  try  offences 
committed  within  their  respective  limits  as  circuit  and  county 
courts  had,  and  the  act  of  April  2,  1873,  to  regiilate  and  define 
the  jurisdiction  of  the  county  and  circuit  courts,  does  not  apply 
to  or  affect  the  jurisdiction  of  said  corporation  courts. 

CHAPTEE  CXLVIII. 

Section  3060. 

In  the  case  of  Patton  vs.  Hoge,  22  Grat.,  443,  decided  July 
15,  1872.  A  point  raised  in  the  cause  was,  that  a  circuit  court 
could  not  enter  a  decree  at  a  special  term,  though  the  cause  was 
ready  for  hearing  at  the  previous  regular  term,  and  was  not  then 
heard,  unless  by  the  consent  of  the  parties.  Held :  The  decree 
was  valid. 

In  the  case  of  Harmnan  vs.  Copenhaver,  89  Va.,  836,  decided 
April  13, 1893.  Where  the  judge's  warrant  appointing  a  special 
term  was  duly  posted  in  accordance  with  Code,  this  section, 
the  presumption  is  that  all  of  the  provisions  of  that  section 
were  complied  with  according  to  the  rule  in  such  cases,  that  all 
acts  are  presumed  to  have  been  rightly  and  regularly  done. 
Besides,  the  provision  that  the  clerk  shall  inform  the  attorney 
for  the  Commonwealth  and  the  sheriff  or  sergeant  of  such  ap- 
pointment is  directory  merely,  and  his  failure  so  to  do  held 
not  to  affect  the  validity  of  the  proceedings  at  such  special  term. 

Section  3062. 
In  the  case  of  Harm^an  vs.  Copenhaver^  89  Va.,  836,  decided 
April  13,  1893.  A  decree  was  entered  at  a  special  term  con- 
firming a  report  of  sale  filed  before  the  commencement  of  the 
preceding  regular  term,  and  which  could  have  been  acted  on  at 
that  term.     Held :  No  error. 

CHAPTER  CXLIX. 

Section  3069. 
In  the  case  of  Hunter's  Executrix  vs.  Yaughn  et  als.,  24  Grat., 
400,  decided  January,  1874,  it  was  held :   Where  the  trustees  in. 


Citations  to  the  Code  of  Virginia.  659 

«,  deed  recorded  in  the  clerk's  office  in  Richmond  have  died 
or  removed  out  of  the  State,  or  refuse  to  act,  the  Circuit  Court 
of  the  city  of  Richmond  has  jurisdiction  to  appoint  a  trustee  in 
the  place  of  such  trustees. 

Section  3073. 
In  the  case  of  Cluverius  vs.  The  Commonwealth,  81  Va.,  787, 
decided  May  6,  1886,  it  was  held:  Corporation  courts  have  the 
authority  to  continue  a  term  from  day  to  day  into  the  next 
succeeding  month,  and  to  change  accordingly  the  day  for  the 
commencement  of  the  succeeding  term. 

Section  3079. 
In  the  case  of  Morriss  vs.  Virginia  Insurance  Company,  85 
Va.,  588,  decided  December  13,  1888.  Section  3427  provides 
that  any  chancery  cause  may,  by  consent,  be  submitted  to  the 
judge  of  the  court  wherein  pending  for  determination  in  vaca- 
tion. This  section  authorizes,  in  certain  events,  the  judge  of 
the  Hustings  Court  of  the  city  of  Richmond  to  perform  any  duty 
required  by  law  of  the  judge  of  the  chancery  coui-t.  Where 
such  cause  pendin<^  in  the  chancery  court  of  said  city  was,  by 
consent  (the  infant  defendants  being  represented  by  guardian 
ud  litem),  submitted,  July  8,  1873,  to  the  judge  thereof  for  de- 
cree in  vacation,  and  a  decree  beneficial  to  said  infants  was 
entered  in  vacation  by  the  judge  of  said  hustings  court,  acting 
as  judge  of  said  chancery  court.  Held :  The  judge  of  the 
hustings  court,  sitting  as  the  judge  of  the  said  chancery  court, 
was  the  judge  of  the  latter  court,  and  the  decree  valid. 

CHAPTER  CL. 

Section  3086. 

In  the  case  of  Gresham  vs.  Ewell  {Judge),  84  Va.,  784,  de- 
cided April  26,  1888,  the  court  held :  This  court  has  no  juris- 
diction to  award  a  writ  of  prohibition  to  a  county  court. 

In  the  case  of  Clay  vs.  Ballard,  87  Va.,  787,  decided  May  5, 
1891,  it  was  held  :  This  section  was  intended  to  define  the  rem- 
edy of  tnandamus  as  it  exists  at  common  law,  and  does  not,  nor 
does  the  fact  that  the  said  section  gives  similar  authority  to  the 
circuit  courts,  restrict  the  jurisdiction  of  this  court  to  award  the 
writ  in  all  cases  in  which  it  may  be  necessary  to  prevent  a  fail- 
ure of  justice. 

CHAPTER  CLI. 

Section  3111, 
See  references  to  Section  4203. 


L 


Section  3114. 
The  reference  to  20  Grat.,  136,  is  an  error. 


660  ,  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Snodgrass  vs.  The  CoTnmonwealth,  89  Va.,  679^ 
decided  February  16,  1893,  it  was  held :  It  is  not  necessary  un- 
der this  section  of  the  Code  to  read  the  court  orders  in  court 
each  day,  but  it  is  sufficient  if  they  are  drawn  up  and  read  at 
the  conclusion  of  the  trial  during  that  term. 

Section  3122. 
In    the   case   of  Langliorne  vs.    yfaller^s  Executor,   76   Va.,. 
213. 

1.  Courts. — Failure  to  Sit. — When  a  court  fails  to  sit  on  any 
day  to  which  it  may  have  adjourned,  all  matters  ready  for  tho 
court  to  act  upon,  if  it  had  been  held  on  such  day,  shall  be  in 
the  same  condition,  and  have  the  same  effect,  as  if  continued  to 
the  next  day  of  the  same  term  that  the  court  may  sit. 

2,  Idem. — Idem. — Case  at  Bar. — Corporation  court  of  L. 
adjourned  from  20th  to  23d  of  December;  failed  to  sit  on  23d, 
but  sat  before  4  o'clock  of  the  third  day  after  the  23d,  and  tried 
and  entered  judgment  in  a  cause  which  at  a  previous  day  of  the 
term  had  been  set  for  trial  on  the  day  last  referred  to  for  con- 
venience and  by  agreement  of  counsel.  Held :  The  court  had  a 
right  to  sit  and  try  and  determine  the  cause  before  4  o'clock  on 
the  26th  of  December,  and  the  judgment  entered  by  it  that  day 
is  valid. 

Section  3124. 

In  the  case  of  Wilkinson  vs.  Ilendrick,  5  Call,  12,  decided 
April,  1804,  it  was  held :  In  a  judgment  on  a  forthcoming  bond, 
if  the  record  states  that  the  cause  was  continued  until  the  next 
day,  but  does  not  mention  that  the  defendant  was  called,  it  is 
not  error,  if  the  defendant  on  the  day  of  the  judgment  prays  an 
appeal  and  gives  bond,  in  court  to  prosecute  it. 

In  the  case  of  Amis  vs.  Koger,  7  Leigh,  221,  decided  Febru- 
ary, 1836.  Notice  is  given  by  K.  to  A.  of  a  motion  to  be  made 
at  June  term  of  a  county  court  for  money  paid  by  K.  as  A.'s 
security.  The  motion  is  continued  without  A.'s  consent  from 
June  term  to  August  term,  passing  by  the  intermediate  July 
term.  Held :  This  was  a  discontinuance,  and  a  judgment  sub- 
sequently rendered  for  the  plaintiff  on  the  same  notice  is  there- 
fore erroneous. 

In  the  case  of  Clerk  vs.  The  Commonwealth,  21  Grat.,  777, 
decided  June  16,  1871,  it  was  held,  p.  781 :  A  county  court  has 
authority  under  this  section  to  render  a  judgment  at  the  August 
term  upon  a  verdict  entered  at  the  July  term,  though  no  order 
of  continuance  be  entered. 

In  the  case  of  Van  Gunden  vs.  Kane,  88  Va.,  591,  decided 
January  14,  1892,  it  was  held :  Under  this  section  it  was  in  the 
power  of  the  court  at  its  July  term  to  enter  judgment  nunc  pro 
tunc,  which  it  had  omitted  on  the  verdict  at  its  April  term. 


Citations  to  the  Code  of  Virginia.  661 

Section  3126. 
In  the  case  of  Cluverius  vs.  The  OommonwedltA,  81  Ya.,  787, 
•decided  May  6,  1886,  it  was  held :  Corporation  courts  have  au- 
thority to  continue  a  term  from  day  to  day  into  the  next  suc- 
ceeding month,  and  to  change  accordingly  the  day  for  the  com- 
mencement of  the  succeeding  term. 

CHAPTER  CLII. 

Section  3139. 

In  the  case  of  Booth  vs.  The  Commonwealth,  16  Grat.,  519, 
•decided  April  10,  1861,  it  was  held :  Persons  over  sixty  years 
of  age  are  not  disqualified  from  serving  on  grand  juries,  though 
they  are  exempt  from  the  service  if  they  choose  to  claim  the 
exemption. 

Section  3140. 

In  the  case  of  Miller  vs.  The  Commonwealth,  80  Va.,  33,  de- 
cided January  9,  1885,  it  was  held :  Where  a  roll  of  a  volunteer 
military  company  is  filed  with  the  clerk  of  the  court,  the  mem- 
bers thereof  are  exempt  from  sitmmons  for  jury  duty,  and,  if 
summoned,  need  not  attend  to  make  their  excuses. 

Section  3155. 
In  the  case  of  Hodges  vs.  The  Commonwealth,  89  Va.,  265, 
■decided  July  6,  1892,  it  was  held:  Where,  after  a  verdict  of 
murder  in  the  second  degree,  a  juror,  on  a  motion  to  set  aside 
the  verdict  on  the  ground  of  previously-expressed  opinion,  ad- 
mitted that  he  might  have  said  that  the  prisoner  would  be,  but 
denied  saying  that  she  should  be,  hung,  and  said  that  he  did 
not  then  know  that  he  had  been  put  on  the  venire  ;  that  he  had 
never  expressed  an  opinion  as  to  her  guilt  or  innocence,  and 
that  his  sympathies  were  with  her,  and  that  he  at  first  favored 
fixing  her  imprisonment  at  the  lowest  term ;  it  was  held :  The 
motion  was  properly  overruled. 

Section  3156. 

In  the  case  of  Parsons  vs.  Harper,  16  Grat.,  64,  decided  Au- 
gust 28,  1860,  it  was  held :  An  irregularity  in  forming  a  jury 
must  be  objected  to  before  the  jury  is  sworn,  unless  the  party  is 
shown  to  have  been  injured  by  it. 

In  the  case  of  Poindexter  vs.  The  Com,m.onwealth,  33  Grat., 
766,  decided  January  8,  1880,  it  was  held  (pp.  791-92) :  The 
objection  to  a  juror  that  he  was  not  a  competent  juror,  because 
he  had  not  paid  his  capitation  tax  of  the  previous  year,  comes 
too  late  after  a  verdict  of  conviction  in  a  criminal  trial,  and  is 
not  good  ground  for  setting  aside  the  verdict  and  granting  a 
•new  trial  to  the  prisoner. 

In  the  case  of  Spiirgeon  vs.  The  Commonwealth,  86  Va.,  652, 


662  Citations  to  the  Code  op  Virginia. 

decided  March  13, 1890,  it  was  held :  In  criminal  cases  wherein 
judgment  was  rendered  before  passage  of  act  of  January  18^ 
1888  (this  section),  failure  of  record  to  show  affirmatively  that 
the  jury  was  regularly  summoned  is  error,  whereof  advantage 
may  be  taken  in  the  appellate  court,  though  no  objection  was 
raised  in  the  court  below. 

In  the  case  of  Jones  vs.  The  Commonwealth,  87  Va.,  63,  de- 
cided November  13,  1890,  it  was  held:  This  section,  to  cure  ir- 
regularity in  writ  of  venire  facias,  etc.,  applies  only  to  civil  and 
misdemeanor  cases;  and  the  act  of  January,  1888  (Acts  1887- 
1888),  does  not  apply  to  a  felony  case  where  there  is  no 
venire  facias  at  all. 

Section  3166. 

In  the  case  of  Mays  vs.  The  Commonwealth,  82  Va.,  550,  de- 
cided November  8,  1886,  it  was  held:  The  defendant  in  a  crim- 
inal prosecution  cannot  waive  a  trial  by  jury  and  submit  all 
matters  of  law  and  fact  to  the  determination  of  the  court,  there 
being  in  this  State  no  statute  authorizing  an  issue  joined  upon 
a  plea  of  not  guilty  in  such  prosecution  in  a  court  of  record  to- 
be  tried  otherwise  than  by  a  jury. 

This  is  the  case  referred  to  in  11  Virginia  Law  Journal,  88. 

In  the  case  of  Ford  vs.  The  Cominonwealth,  82  Va.,  553,  de- 
cided November  18,  1886,  it  was  held:  In  this  State  defendant 
cannot  waive  trial  by  jury  in  a  criminal  prosecution  in  a  court 
of  record. 

Section  3167. 

In  the  case  of  Baltimore  c&  Ohio  Railroad  Company  vs.  Polly ^ 
Woods  <&  Co.,  14  Grat.,  447,  decided  August  9, 1858,  it  was  held, 
p.  471 :  In  an  action  by  a  contractor  on  a  railroad  against  the 
company  for  work  and  labor,  the  plaintiffs  having  offered  evi- 
dence tending  to  show  that  certain  excavation  which  was  a  part 
of  the  work  in  controversy  was  of  solid  rock,  and  the  defendant 
having  offered  evidence  tending  to  show  the  contrary,  the  de- 
fendant moved  the  court  to  have  the  jury  taken  to  view  the 
premises,  they  being  about  thirty  mile'fe  off  on  the  line  of  the 
road,  and  offered  to  send  the  jury  on  the  train  of  the  company, 
and  to  defray  the  expenses.  The  court  having  overruled  the 
motion,  the  appellate  court  cannot  say  the  court  below  erred,^ 
unless  it  appears  from  the  record  that  a  view  was  necessary  to  a 
just  decision,  and  that  does  not  so  appear. 

Section  3168. 
In  the  case  of  Price's  Execxitor  vs.  Fuqua's  Administrators,  1 
H.  &  M.,  385,  decided  July,  1807,  it  was  held:  A  new  trial 
ought  not  to  be  granted  on  the  affidavit  of  two  of  the  jurors 
that  they  were  influenced  in  their  verdict  by  information  given 
by  one  of  their  own  body  in  the  jury  room. 


Citations  to  the  Code  of  Virginia.  663 

In  the  case  of  Atlantic  <&  Danville  Railroad  Company  vs. 
Peake,  87  Va.,  130,  decided  December  4,  1890,  it  was  held: 
Remarks  of  juror  during  trial,  even  if  reprehensible,  cannot  be 
taken  advantage  of  after  verdict ;  and  for  a  juror  to  say  upon 
hearing  a  fact  testified  by  a  witness,  "Yes  sir;  I  know  all  about 
it.  That  is  so,"  is  only  in  obedience  to  this  section,  declaring 
that  "  a  juror,  knowing  anything  relative  to  a  fact  in  issue,  shall 
disclose  the  same  in  open  court." 


TITLE  XLVII. 

CHAPTER  CLIII. 

CHAPTER  CLIV. 

Section  3193. 

In  the  case  of  Benjamin  WatJcins  Leigh,  1  Munf.,  468,  decided 
November  16,  1810,  it  was  held :  The  practice  of  the  law  is  not 
an  office  or  place  under  the  Commonwealth.  An  attorney-at-law 
is  not  bound,  as  a  requisite  to  his  admission  to  the  bar  of  any 
court,  to  take  the  oath  prescribed  by  the  third  section  of  the  act 
to  suppress  dueling. 

Section  3196. 

Ex  Parte  Fisher,  6  Leigh,  619,  decided  by  the  General  Court 
December,  1835.  By  the  provisions  of  the  statute,  a  court  can- 
not for  malpractice  of  an  attorney  or  counsellor,  committed  in 
its  presence,  suspend  the  license  of  the  party  offending  in  a 
summary  way,  but  must  direct  an  information  to  be  filed  against 
him,  and  inflict  the  punishment  on  the  verdict  found  on  such 
information. 

Section  3198. 

In  the  case  of  Wells  vs.  The  Commonwealth,  21  Grat.,  500, 
decided  November,  1871,  it  was  held:  An  appeal  may  be  made 
to  the  court  of  appeals  from  the  judgment  of  a  circuit  court  im- 
posing a  fine  upon  a  person  for  a  contempt  of  the  court  in 
aiding  to  obstruct  the  execution  of  a  decree  of  the  court. 

Where  a  rule  is  made  upon  a  person  to  show  cause  why  he 
should  not  be  punished  for  a  contempt  of  the  court  in  aiding  to 
obstruct  the  execution  of  a  decree  of  the  court,  he  purges  him- 
self of  the  contempt  by  answering  under  oath  that  in  what  he 
had  done  he  acted  as  counsel  in  good  faith,  without  design,  wish, 
or  expectation  of  committing  any  contempt  of,  or  offering  dis- 
respect to,  the  court. 

The  duty  of  an  attorney  to  his  client  cannot  conflict  with  his 
obligation  to  demean  himself  honestly  in  the  practice  of  the 
law,  or  to  be  faithful  in  his  country.    But  if  he  acts  in  good 


664  Citations  to  the  Code  of  Virginia. 

faith  and  demeans  himself  honestly,  he  is  not  responsible  for  an 
error  in  judgment. 

Section  3199. 
In  the  case  of  Ex  Parte  Collins,  2  Va.  Cases,  222,  decided  by 
the  General  Court,  it  was  held :  The  clerk  of  a  superior  court  of 
law  cannot  be  permitted  to  practice  as  attorney  in  the  court  of 
which  he  is  clerk,  notwithstanding  his  license  to  practice  in  all 
the  courts  of  the  Commonwealth. 

Section  3200. 

In  the  -case  of  Stephens  vs.  White,  2  Wash.,  260  (1st  edition,  p. 
203),  decided  at  October  term,  1796,  it  was  held:  To  hold  an 
attorney  responsible  in  damages  for  mismanagement  of  a  cause, 
it  is  necessar}'  to  show  gross  negligence. 

It  is  a-lso  necessary  to  show  that  he  was  employed  at  a  time 
when  he  might  have  made  the  suit  good  by  proper  skill,  and  is 
not  liable  for  the  acts  of  a  predecessor  or  colleague  not  employed 
by  himself. 

In  the  case  of  Tailor  vs.  Armistead,  3  Call,  200  (2d  edition, 
171),  decided  May  7,  1802,  it  was  held:  To  recover  15  per 
cent,  damages  under  this  section  it  is  necessary  to  show  not 
only  the  receipt  of  the  money,  but  also  a  demand  for  the  pay- 
ment of  the  same. 

In  the  case  of  Rootes  vs.  Stone,  2  Leigh,  650,  decided  April, 
1831.  An  attorney  at  law  is  employed  to  collect  debts,  and 
some  of  them  are  lost  to  his  cUent  through  his  negligence. 
Held :  The  attorney  is  chargeable  for  the  principal  of  the  debts 
lost,  but  not  with  interest  thereon. 

In  the  case  of  Pidgeon  vs.  Williams's  Administrators,  21 
Orat.,  251,  decided  August,  1871,  it  was  held:  Attorneys  at  law 
are  liable  as  ordinary  bailees  for  money  collected  for  their 
clients. 

An  attorney  receiving  in  February,  1862,  Confederate  cur- 
rency, which  was  then  the  only  currency,  and  very  little  depre- 
ciated, is  not  liable  to  his  client  for  receiving  such  money,  he 
not  having  forbade  it. 

An  attorney  receiving  Confederate  currency  for  a  debt  due  to 
his  client,  deducts  his  fees  from  the  amount,  and  deposits  the 
balance  in  a  bank  of  good  credit,  not  in  his  own  name,  but  to 
"  collection  account,"  an  account  in  which  he  deposits  all  money 
collected  by  him  for  his  clients,  and  on  the  book  pf  the  bank 
the  name  of  the  client  is  written  opposite  the  name  of  the  sum 
deposited  for  him.  The  client  not  calling  for  his  money  until 
the  end  of  the  war,  when  the  bank  has  failed,  the  attorney  is  not 
liable  for  it. 

The  client  living  in  Maryland,  but  the  place  of  his  residence 
l)eing  unknown  to  the  attorney,  though  the  client  comes  to  the 


Citations  to  the  Code  op  Virginia.  665 

iown  where  the  attorney  lives  occasionally  during  the  war,  when 
the  Federal  forces  have  possession  of  it,  but  does  not  call  upon 
the  attorney,  nor  does  he  let  him  know  he  is  there.  Held :  The 
attorney  is  not  liable  for  failing  to  give  him  notice  that  the 
money  has  been  collected. 

In  the  case  of  Tanner  vs.  Bennetts  Administrator ,  33  Grat., 
251,  decided  April,  1880.  T.  died  in  1863,  and  his  estate  was 
committed  to  B.,  sheriflf  of  P.,  as  administrator  with  the  will 
annexed.  Among  the  assets  was  a  bond  of  F.,  who  lived  in  P. 
E.  county,  to  T.  for  one  thousand  seven  hundred  and  eighty- 
five  dollars,  executed  November  2,  1857.  In  1863  B.  sent  this 
bond  to  H.,  a  lawyer  living  in  P.  E.  county,  for  collection  by 
«uit  or  otherwise.  F.  had  in  possession  a  considerable  estate, 
real  and  personal,  but  he  was  largely  indebted,  and  H.,  as  well 
as  other  counsel  who  had  claims  against  F.,  apprehended  that 
if  he  was  sued  he  would  convey  his  estate  to  secure  preferred 
<;reditors;  and  therefore  H.  did  not  bring  suit  upon  the  bond 
until  1866.  Several  suits  were  brought  against  F.  in  January, 
1866,  and  he  sold  and  conveyed  his  land  in  payment  of  debts 
mentioned  in  the  deed,  and  soon  after  went  into  bankruptcy, 
paying  nothing.  Held :  Neither  B.  nor  his  counsel  was  guilty 
of  negligence;  and  B.'s  estate  is  not  responsible  for  the  debt. 

In  the  case  of  Tuley  vs.  Barton,  79  Va.,  387,  decided  Septem- 
ber 25,  1884,  it  was  held :  Attorney's  receipt  for  claims  for  col- 
lection may  be  so  far  added  to  by  parol  testimony  as  to  show  a 
contemporaneous  additional  contract  on  the  part  of  attorney  to 
receive  the  claims  as  collateral  security  for  debts  due  him  from 
client.  But  the  liability  of  attorney  or  transferee  is  only  for 
the  exercise  of  due  diligence  to  collect  those  ciaims;  and  in 
neither  capacity  is  he  responsible  for  their  loss,  unless  such 
loss  be  occasioned  by  his  negligence. 

In  the  case  of  Hudson  vs.  Johnson,  1  Wash.,  10,  decided  at 
the  spring  term,  1791,  it  was  held :  Payment  to  an  attorney-at- 
law  under  the  custom  of  the  country  is  good,  though  made  after 
the  action  brought. 

In  the  case  of  Branch  vs.  Burnley  et  als.,  1  Call,  147  (2d  edi- 
tion, 127),  decided  November  6, 1797,  it  was  held :  An  attomey- 
at-law  may  receive  the  money  recovered  from  the  defendant, 
and  his  receipt  will  discharge  the  judgment. 

In  the  case  of  Herbert  vs.  Alexander,  2  Call,  499  (2d  edition, 
418),  decided  October  20,  1800,  it  was  held:  An  attorney-at- 
law  only  represents  the  plaintiff  or  defendant  in  court  to  do 
such  acts  as  the  plaintiff  or  defendant,  if  in  the  court,  might  do 
himself;  but  he  has  no  right  to  enter  into.private  or  executory 
contracts. 

The  powers  of  an  attorney  do  not  extend  to  the  making  of 
*ny  collateral  agreement. 


666  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Wilson  vs.  Stokes  and  Betts,  4  Munf.,  455,  de- 
cided October,  1815,  it  was  held:  It  seems  that  since  the  attor- 
ney-at-law,  who  prosecutes  a  suit  and  obtains  judgment,  has- 
full  power  to  receive  the  money  recovered  when  levied  by  exe- 
cution, a  demand  made  by  him  of  the  sheriff  by  whom  it  is 
levied  is  sufficient  to  authorize  a  motion  against  such  sheriff  for 
non-payment. 

In  the  case  of  Jas.  Smock  vs.  Laurence  T.  Dade,  5  Rand., 
639,  decided  by  the  General  Court,  November,  1826,  it  was 
held :  An  attorney-at-law  has  no  right  to  receive  a  bond  from 
the  debtor  in  discharge  of  his  client's  claim,  without  the  assent 
of  the  client.  If  he  does,  he  is  the  agent  not  of  the  plaintiff,  but 
of  the  defendant,  and  the  plaintiff  may  still  proceed  against  the- 
defendant. 

In  the  case  of  Wilkinson  (&  Co.  vs.  JTolloway,  7  Leigh,  277,. 
decided  February,  1836.     An  attorney-at-law  employed  to  col- 
lect a  debt  may  receive  payment  in  money,  but  has  no  authority 
to  accept  anything  else  in  satisfaction. 

Therefore,  where  an  attorney  employed  to  collect  a  debt  dis- 
counts from  it  a  debt  he  himself  owes  the  debtor,  and  takes  for 
the  balance  the  debtor's  assignment  of  a  bond  of  third  persons, 
the  creditor  is  not  bound  by  such  arrangement. 

An  attorney-at-law  employed  to  collect  a  debt  takes  in  satis- 
faction thereof  the  debtor's  assignment  to  the  creditor  of  a  bond 
of  third  persons  held  by  the  debtor,  and  institutes  a  suit  on  the 
assigned  bond  against  the  obligors  ;  the  creditor  prosecutes  the- 
suit,  which  is  long  pending,  and  pays  the  costs  therein  incurred. 
Held :  The  creditor  does  not  thereby  ratify  the  act  of  the  attor- 
ney in  commuting  the  original  debt ;  and  the  recovery  against 
the  obligors  in  the  assigned  bond  having  proved  unavailing,  the 
debtor's  liability  still  continues. 

In  the  case  of  Smith's  Administrators  vs.  Lambert,  7  Grat.^ 
138,  decided  November  18,  1850.  An  attorney-at-law  receivea 
a  claim  for  collection,  and  he  brings  suit  upon  it  and  obtains  a 
judgment.  The  debtor  then  puts  into  his  hands  the  bond  of  a 
third  person  for  about  the  amount  that  is  due  on  the  judgment, 
and  the  attorney  gives  him  a  receipt  by  which  he  says  that  he 
has  received  the  bond  on  which  he  is  to  bring  suit,  and  after 
paying  himself  his  fee  and  commission  is  to  apply  the  balance 
to  the  credit  of  the  judgment.  The  attorne}'  receives  the  money 
on  the  bond,  but  does  not  pay  it  over  to  the  creditor.  Held : 
This  is  a  valid  payment  by  the  judgment-debtor. 

In  the  case  of  Hill  et  als.  vs.  Boicyer  et  als.,  18  Grat.,  364, 
decided  April,  1868,  it  was  held,  p.  378 :  A  defendant  upon  whom 
process  has  been  served,  who  wholly  neglects  his  defence,  or 
contents  himself  with  merely  writing  to  a  lawyer  who  practices. 
in  the  court  to  defend  him,  without  giving  him  any  iuformation> 


Citations  to  the  Code  of  Yirginu.  667 

about  his  defence,  or  inquiring  whether  he  is  attending  to  the 
case,  is  not  entitled  to  relief  against  a  decree  by  default,  on  the 
ground  of  surprise,  however  grossly  unjust  the  decree  may  be. 

In  the  case  of  Holland  et  ux.  vs.  Trotter,  22  Grat.,  136,  de- 
cided April  10,  1872,  it  was  held,  p.  143 :  Where  the  defendant 
at  law  has  been  prevented  from  making  his  defence  by  the  as- 
surances or  promises  of  the  counsel  of  the  plaintiff,  the  court 
will  relieve  him. 

In  the  case  of  Wilson  et  xix.  vs.  Smith,  22  Grat.,  493,  decided 
August  28,  1872,  it  was  held :  In  a  suit  for  partition  of  real 
estate  by  W.  against  S.  "W.  dies  and  the  suit  is  revived  in  the 
name  of  his  widow  and  infant  son.  The  counsel  employed  by 
W.  will  be  presumed,  in  the  absence  of  evidence  to  the  contrary, 
to  be  continued  as  counsel  in  the  cause ;  and  a  decree  for  a  sale 
of  the  property  entered  upon  a  consent  of  the  counsel  is  a  valid 
decree,  and  the  sale  under  the  decree  will  be  sustained. 

In  the  case  of  Johnson  vs.  Gibbons,  27  Grat.,  632,  decided 
July,  1876,  it  was  held :  In  1860  attorneys-at-law  receive  two 
notes  and  give  a  receipt  which  says :  "  Received  for  collection," 
and  describing  them,  says :  "  On  the  above  notes  we  are  about  to 
bring  suit,  and  prosecute  them  to  judgment,  and  to  have  a  fee 
of  five  dollars  in  each  case."  Though  the  clause  of  the  receipt 
may  be  construed  to  relieve  them  from  the  obligation  to  collect, 
and  from  the  corresponding  compensation  or  commission  for 
collecting,  it  cannot  be  construed  to  deny  to  them  the  authority 
to  collect,  or  to  limit  them  to  the  function  of  prosecuting  the 
claims  to  judgment. 

Judgments  having  been  recovered  in  the  cases,  and  executions 
issued,  which  were  stayed,  the  debtor  in  1862  pays  to  the  at- 
torneys two  thousand  six  hundred  dollars  in  part  of  these  debts, 
the  payment  being  in  Confederate  money,  neither  the  attorneys 
nor  the  debtor  having  any  notice  that  the  creditor  was  unwilling 
to  receive  Confederate  money,  and  the  attorneys  write  immedi- 
ately to  the  creditor  that  they  have  this  money  for  him ;  and  he, 
holding  that  the  attorneys  had  no  authority  to  collect  the  money, 
does  not  reply  to  their  letter,  and  neither  attorneys  nor  debtor 
hear  of  any  objection  to  their  receipt  of  the  money  until  1874. 
The  creditor  is  concluded  by  his  failure  to  give  his  attorneys 
notice  of  the  objection  to  their  receiving  the  money. 

Section  3201. 
In  the  case  of  Yates  cfe  Ayres  vs.  Robertson  <&  Berkley,  80 
Va.,  475,  decided  May  7,  1885,  it  was  held:  The  clerk  of  the 
court  cailnot  tax  against  the  losing  party  in  a  suit  other  than 
the  fees  prescribed  by  statute.  But  contracts,  expressed  or  im- 
plied, between  attorney  and  client  for  fees,  are  not  limited  as  to 
the  amount,  and  may  be  enforced  as  other  contracts.     A  client 


668  Citations  to  the  Code  of  Virginia. 

cannot  refuse  to  pay  his  attorney  his  fees,  though  that  attorney 
be  practicing  without  license. 

In  the  case  of  Thomas  vs.  Turner^ &  Administrator  et  als.,  87 
Va.,  1,  decided  November  6,  1890,  it  was  held:  This  section, 
enacting  that  "in  any  contract  made  with  an  attorney,  other  or 
higher  fees  shall  be  valid,  and  may  be  enforced  in  like  manner 
with  other  contracts,"  does  not  apply  to  an  agreement  made 
after  the  relation  of  attorney  and  client  is  established. 

In  the  case  of  Rixey  [Trustee)  vs.  Peare  Bros.  &  Co.,  89  Va., 
113,  it  was  held :  An  agreement  in  a  note  to  pay  an  attorney's 
fees  for  collection  is  a  penalty,  and  not  enforceable. 

Section  3202. 

In  the  case  of  Citizens'  National  Bank  of  Charlottesville  vs. 
Manoni,  76  Va.,  802.  Judicial  Sales —  Costs — Fees  of  Counsel. — 
When  property  is  sold  under  a  decree  of  court  to  satisfy  liens 
thereon,  out  of  the  proceeds  must  be  paid  the  taxed  costs,  but 
not  more  than  the  legal  fee  to  the  plaintiff's  counsel.  If  an  al- 
lowance beyond  the  usual  fee  for  counsel  representing  the  cre- 
ditors be  proper,  and  it  be  paid  out  of  the  proceeds,  it  should 
be  credited  ratably  on  the  liens,  so  as  not  to  tax  the  debtor 
with  it. 

In  the  case  of  Doswell  vs.  Anderson,  1  Patton  &  Heath,  185, 
decided  January,  1855,  it  was  questioned:  Whether  the  trust 
subject  is  liable  beyond  the  profits  for  fees  of  counsel  employed 
by  cestui  que  trust  and  trustee. 

In  the  case  of  Grurnee  vs.  Bausemer  c&  Co.,  80  Va.,  867,  de- 
cided October  8,  1885.  B.  &  Co.  held  judgments  against  M. 
binding  on  land  of  his  surety,  W.,  aliened  to  G.  In  a  suit  of 
Band  vs.  M.,  funds  were  recovered  to  pay  M.'s  debts.  A  decree 
was  entered  requiring  those  participating  in  said  funds  to  pay 
^5  per  cent,  of  their  claims  for  fees  allowed  plaintiff's  counsel. 
B.  &  Co.  participated,  received  the  amounts  of  their  judgments, 
less  said  25  per  cent.,  and  receipted  in  full.  Later,  B.  &  Co. 
-claimed  that  their  judgments  were  subsisting  liens  on  W.'s  land 
aliehed  to  G.,  who  was  no  party  to  the  suit,  to  the  extent  of  said 
25  per  cent. ;  and  the  court  below  directed  the  receiver  to  collect 
said  25  per  cent,  of  G.  On  appeal  it  was  held :  Release  of  the 
principal,  M.,  was  the  release  of  his  surety,  W.,  and  the  judg- 
ment-liens were  discharged  in  toto.  Creditors  have  no  legal 
right  to  be  reimbursed  by  their  debtors  for  counsel-fees  con- 
tracted by  them.  G.  being  no  party  to  the  suit,  the  decree  was 
3k  nullity  quoad  him. 

CHAPTER   CLV. 


Citations  to  the  Code  of  Vieginia.  669^ 

TITLE  XLVIII. 
CHAPTEK    CLVL 

Section  3207. 

See  references  to  Section  3224. 

In  the  case  of  Segouine  vs.  the  Auditor  of  Public  Accounts,  4 
Munf.,  398,  decided  March  13,  1815,  it  was  held:  A  notice  that 
a  motion  will  be  made  for  a  judgment  against  a  sheriiff  for  the 
amount  of  his  receipt  for  sundry  executions  for  fines,  "  as 
appears  by  a  copy  of  said  receipt,"  is  sufficient,  without  men- 
tioning the  aggregate  sum  due,  the  separate  amount  of  each 
execution,  or  the  time  when  delivered  to  the  sheriff.  And  a 
judgment  thereupon  for  the  aggregate  sum  due,  without  dis- 
tinguishing the  amount  of  each  execution,  will  be  sustained  if 
conformable  to  law  in  other  respects. 

A  notice  is  sufficient  if  delivered  to  a  free  white  person  above 
sixteen  years  of  age,  in  whose  house  the  party  for  whom  it  is 
intended  is  a  boarder,  though  not  a  permanent  resident. 

In  the  case  of  Barksdale  vs.  JSfeal^  16  Grat.,  314,  decided 
March  5,  1862,  it  was  held:  A  return  upon  a  summons  "ex- 
ecuted in  person,"  signed  by  the  deputy-sheriff  with  his  own 
name  and  that  of  his  principal,  shows  that  the  summons  was 
actually  served  on  the  defendants;  and  therefore  if  it  is  de- 
fective the  defect  can  only  be  taken  advantage  of  by  plea  in 
abatement. 

In  the  case  of  Gooishy,  etc.,  vs.  St.  John,  25  Grat.,  146,  de- 
cided June,  1874.  In  1866  S.  sues  G.  &  R.,  partners,  in  debt. 
The  sheriff  returns  on  the  process  executed  on  G.,  leaving  a 
copy  at  the  house  with  his  sister,  and  on  R.,  leaving  a  copy  at 
his  house  with  his  wife.  On  his  return  there  is  an  office  judg- 
ment confirmed.  The  stay-law  prevents  an  execution  on  this 
judgment,  but  there  is  a  judgment  upon  notice  for  a  year's  in- 
terest upon  the  judgment  in  1867,  and  also  in  1868.  In  1870 
execution  is  issued  on  the  judgment,  when  G.  <fe  R.  enjoin  it  on 
the  ground  that  a  credit  of  one  hundred  dollars  endorsed  on 
the  note  should  have  been  six  hundred  dollars,  and  that  the 
process  was  not  properly  served,  and  they  had  no  notice  of  the 
suit.  S.  demurs  to  the  bill  for  want  of  equity.  Held :  G.  &  R. 
having  had  notice  of  the  judgment  within  the  time  limited  for  a 
motion  to  quash  it,  they  had  a  remedy  at  law  by  motion  to 
quash  the  sheriff's  return,  and  therefore  they  are  not  entitled  to 
relief  in  equity. 

In  the  case  of  Mc  Veigh  vs.  The  Bank  of  the  Old  Dominion, 
26  Grat,  785,  decided  November  18,  1875,  it  was  held:  The 
statute  directing  how  notices  may  be  given  does  not  apply  to  a 
notice  of  the  dishonor  of  negotiable  paper. 


670  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Smithson  vs.  Briggs,  33  Grat.,  180,  decided 
April,  1880.  In  an  action  of  ejectment,  the  officer  returns  upon 
the  rule  to  plead,  "G.  W.  Smithson  not  being  found  at  his 
usual  place  of  abode,  a  true  copy  of  the  within  rule  was  left 
at  his  residence  with  his  daughter,  who  is  over  the  age  of  six- 
teen years,  and  purport  explained  to  her,  this  28th  day  of 
August,  1871."  Held:  It  will  be  presumed  that  the  word 
"residence"  was  used  as  synonymous  with  "his  usual  place  of 
abode,"  and  that  the  daughter  was  a  member  of  defendant's 
family,  and  the  notice  was  sufficient. 

In  the  case  of  Clay  et  als.  vs.  Walter  c&  Co.,  79  Va.,  92,  de- 
cided May  1,  1884,  it  was  held,  p.  97 :  Whatever  the  design  of 
the  grantor,  a  settlement  on  a  woman  in  contemplation  and  in 
consideration  of  marriage  is  valid,  unless  her  knowledge  of  his 
intended  fraud  is  clearly  and  satisfactorily  proved.  Service,  by 
creditors  of  grantor  of  written  notice  on  the  grantee,  before  the 
marriage,  of  his  fraudulent  design  in  making  the  settlement, 
cannot  affect  her  constructively  with  notice  of  such  design ;  but 
her  actual  knowledge  of,  and  participation  in,  that  fraudulent 
design  must  be  clearly  established  by  proof. 

The  reference  to  11  Virginia  Law  Journal,  627,  is  an  error, 
as  nothing  in  point  there  appears. 

In  the  case  of  Drew  vs.  Anderson,  1  Call,  51  (2d  edition,  44), 
decided  November  16,  1797,  it  was  held :  If  notice,  which  is  the 
act  of  the  parties  and  not  of  counsel,  be  general,  it  is  to  be  fa- 
vorably expounded,  and  applied  to  the  truth  of  the  case  as  far  as 
it  will  bear ;  but  if  it  descends  to  particulars,  it  must  be  correct 
as  to  them. 

In  the  case  of  Graves  vs.  Webb,  1  CpII,  444  (2d  edition,  385), 
decided  November  2,  1798,  it  was  held:  If  the  notice  apprise 
the  defendant  of  the  grounds  of  the  motion,  it  is  sufficient. 

In  the  case  of  Lemoigne  vs.  Montgomery,  5  Call,  528,  decided 
October,  1805,  it  was  held :  If  the  notice  on  a  forthcoming  bond 
be  signed  by  the  plaintiff,  it  is  sufficient,  although  it  omit  to 
state  to  whom  the  bond  is  made  payable,  as  the  defendant  in 
such  a  case  has  no  reason  to  presume  that  the  plaintiff  means 
to  move  upon  a  bond  not  given  to  himself. 

For  reference  to  4  Munf.,  398,  see  supra,  this  section. 

In  the  case  of  Cooke  vs.  The  Patriotic  Bank  of  Washington,  1 
Leigh,  433,  decided  October,  1829.  In  a  notice  of  a  motion  to 
be  made  on  a  forthcoming  bond,  the'  bond  is  described  by  mis- 
take as  executed  by  John,  when  it  was,  in  fact,  executed  by 
George  M.  Cooke.  It  was  held :  Variance  material,  and  notice 
insufficient. 

In  the  case  of  Hendricks  vs.  Shoemaker,  3  Grat.,  197,  decided 
July,  1846,  it  was  held :  One  joint  notice  to  the  constable  and 
his  sureties,  upon  defaults  of  the  constable  in  several  cases,  is 


Citations  to  the  Code  or  Virginia.  671 

sufficient,  and  the  justice  should  give  a  separate  and  distinct 
judgment  in  each  case. 

In  the  case  of  Booth  vs.  Kinsey,  8  Grat.,  560,  decided  April, 
1852.  A  debtor  in  execution  executes  a  forthcoming  bond  to 
the  creditor,  and  a  third  person  and  the  obligee  execute  the 
bond  with  the  debtor,  as  his  sureties.  The  bond  being  forfeited, 
the  obligee  gives  notice  to  the  principal  obligor  and  the  other 
surety  of  a  motion  of  award  of  execution  upon  the  bond  against 
them,  but  the  notice  does  not  menticm  the  obligee  as  co-obligor. 
Held :  The  notice  is  not  defective  for  failing  to  mention  the  obli- 
gee as  a  co-obligor. 

In  the  case  of  Monteith  [Sheriff)  et  als.  vs.  The  Oornmonwealth, 
15  Grat.,  172,  decided  April,  1859,  it  was  held :  The  notice  to 
the  sheriff  and  the  sureties  being  of  a  motion  for  a  balance  of 
the  land,  pi'operty,  and  free  negro  taxes  of  1857,  and  the  judg- 
ment being  for  a  balance  due  upon  these  and  also  upon  the 
license  tax,  this  is  error,  for  which  the  judgment  will  be  re- 
versed in  the  appellate  court. 

In  the  case  of  Board  of  Supervisors  of  Washington  County 
vs.  Dunn  et  als.,  27  Grat.,  608,  decided  June,  1876,  it  was  held: 
A  notice  by  the  supervisors  of  a  county  to  D.,  late  sheriff,  and 
his  sureties,  that  they  will  move  the  county  court  at  its  Novem- 
ber term  to  render  judgment  against  them  for  the  sum  of 
$4,840.03,  the  same  being  the  amount  of  said  D.'s  deficiencies 
and  default  for  the  county's  levy  for  the  year  1869  that  went  into 
D.'s  hands  as  sheriff  as  aforesaid,  and  which  he  had  failed  to 
account  for,  etc.,  is  sufficiently  specific  and  definite  to  warrant 
a  judgment  thereon. 

The  rules  governing  notices  are,  that  they  are  presumed  to  be 
the  acts  of  parties,  and  not  of  lawyers.  They  are  viewed  with 
great  indulgence  by  the  courts,  and  if  the  terms  of  the  notice 
be  general,  the  court  will  construe  it  favorably,  and  wiU  apply 
it  according  to  the  truth  of  the  case,  as  far  as  the  notice  will  ad- 
mit of  such  application.  If  it  be  such  that  the  defendant  can- 
not mistake  the  object  of  the  motion,  it  will  be  sufficient. 

In  the  case  of  Carr  et  als.  vs.  MeacCs  Executors  et  als. ;  Same 
vs.  Clagetfs  Executors  et  als.,  77  Va.,  142  and  158,  decided  Feb- 
ruary 18,  1883.  In  1871,  on  the  entire  stock  of  goods  of  S.  B., 
a  retail  storekeeper,  execution  of  K.  F.  &  Co.  was  levied  by  W.  B., 
then  sheriff.  Thereupon  same  claimants  for  the  goods  on  di- 
vers pretexts,  notably  M.  and  C,  who  claimed  by  levy  thereon 
by  a  former  sheriff,  under  senior  executions.  Sale  was  made 
by  W.  B.,  sheriff,  who  then  instituted  a  chancery  suit  convening 
F.  E.  &  Co.,  M.  C.,  and  the  other  claimants,  and  had  an  account 
of  liens  and  priorities.  In  1875  the  court  decreed  that  sheriff,. 
W.  B.,  pay  out  proceeds  to  M.  and  to  C.  their  respective 
claims.     Sheriff,  W.  B.,  squandered  the  money  and  became  in- 


672  Citations  to  the  Code  of  Virginia. 

solvent.  In  1879  M.  and  C.  moved  the  county  court  of  L.^ 
wherein  sheriff,  W.  B.,  qualified  for  judgment  against  him  and 
sureties  for  money  each  was  entitled  to.  Defendants  moved  to 
dismiss  for  want  of  jurisdiction,  and  to  quash  the  notice  for 
want  of  certainty,  and  to  amend  return  on  the  execution,  all 
whereof  the  county  court  overruled,  but,  on  motion  of  plaintiffs,, 
admitted  as  evidence  the  chancery  record,  yet  on  the  merits  ad- 
judged for  defendants.  On  error,  circuit  court  affirmed  the 
overruling  of  defendants'  motion  and  the  admitting  of  the  re- 
cord as  evidence,  but  reversed  the  judgment  on  the  merits,  and 
adjudged  to  M.  and  to  C.  the  sums  of  money  each  was  entitled 
to,  and  costs.     On  error  here,  held : 

1.  The  county  court  of  L.  had  jurisdiction  to  hear  and  deter- 
mine the  motions  of  M.  and  C.  for  judgments  on  the  official 
bond  of  the  sheriff  and  his  sureties. 

2.  The  notice  was  sufficient. 
See  references  to  Section  3249. 

In  the  case  of  Fowler  vs.  Mosher,  85  Va.,  421,  decided  Sep- 
tember 20,  1888.  This  section  provides  that  notice  may  be 
served  by  delivering  a  copy  to  a  "member  of  the  family"  of  the 
person  to  be  notified.  Held :  Delivery  to  a  "  mere  boarder,  a 
stranger  to  his  blood  "  is  not  sufficient,  and  appearing  and  con- 
testing validity  of  service  is  no  waiver  of  defects  of  notice.  Sed 
quaere  :  Is  delivery  to  a  servant  of  the  person  to  be  notified  suf- 
ficient ?  By  this  section,  return  stating  that  person  to  be  noti- 
fied was  "  not  at  home."  Held :  Sufficient  to  authorize  service 
upon  member  of  his  family. 

Section  3209. 
In  the  case  of  Yirginia  Fire  and  Marine  Insurance  Company 
vs.  Vaughn,  88  Va.,  832,  decided  March  10,  1892.  Service  of 
summons  on  defendant's  agent  having  been  made  within  ten 
days  of  return-day,  and  suit  having  been  remanded  to  rules  to 
be  properly  matured,  and  an  alias  summons  having  been  issued 
and  duly  served,  it  was  held:  Commencement  of  suit  was  the 
issuance  of  original  summons  and  saved  the  suit  from  being 
barred  by  the  limitation  clause  in  the  policy. 

Section  3210. 
In  the  case  of  Carr  et  als.  vs.  Mead's  Fxectitrix'et  als.,  11  Va., 
142,  decided  February  8,  1883,  it  was  held :  To  sustain  such 
motion,  any  notice,  however  informal,  which  informs  the  defend- 
ants of  the  nature  and  object  of  the  motion  is  sufficient. 

Section  3211. 
In  the  case  of  Amis  vs.  Koger,  1  Leigh,  220,  decided  Feb- 
ruary, 1836.     Notice  is  given  by  K.  to  M.  of  a  motion  to  be 
made  at  June  term  of  a  county  court  for  money  paid  by  K.  as 


Citations  to  the  Code  of  Virginia,  678 

A.'s  surety ;  the  motion  is  continued  without  A.'s  consent  from 
June  term  to  August  term,  passing  by  the  intermediate  July 
term:  Held:  This  was  a  discontinuance,  and  a  judgment  subse- 
quently rendered  for  the  plaintiff  on  the  same  notice  is  there- 
fore erroneous. 

In  the  case  of  Ilale  vs.  Chamberlain^  13  Grat.,  658,  decided 
February  10,  1857,  it  was  held:  In  a  proceeding  under  the 
statute  to  recover  money  due  upon  contract  by  notice,  the 
notice  must  be  returned  forty  days  before  the  commencement  of 
the  term,  and  put  upon  the  docket  of  the  court,  or  it  cannot  be 
tried  at  that  term. 

In  the  case  of  Davis  {Sheriff)  vs.  The  Covimonwealth,  16  Grat., 
134,  decided  March  5,  1861,  it  was  held,  p.  136 :  All  judgments 
where  there  has  been  no  appearance  by  the  defendant  are  judg- 
ments by  default,  within  the  meaning  of  the  act. 

Section  3212. 

In  the  case  of  Glassel  vs.  Delima,  2  Call,  368  (2d  edition, 
309),  decided  October  27,  1800,  it  was  held :  On  a  joint  notice 
to  all  the  obligors  in  a  forthcoming  bond  the  plaintiff  may  take 
judgment  against  one  of  the  defendants. 

In  the  case  of  Watkins's  Executor  vs.  Tate,  3  Call,  521  (2d  edi- 
tion, 451),  decided  June  28,  1790,  it  was  held :  The  executors 
of  two  deceased  joint  obligors  cannot  be  joined  in  the  same 
action. 

In  the  case  of  Gryinesy?,.  Pendleton,  4  Call,  130,  decided  May, 
1788,  it  was  held :  The  representatives  of  two  deceased  persons 
cannot  be  joined  in  the  same  action,  although  the  undertakings 
of  the  testators  might  have  been  joint  and  several. 

In  the  case  of  Winston  vs.  Whitlocke,  5  Call,  435,  decided 
April,  1805.  A.  gave  a  forthcoming  bond  with  W.  as  security. 
Judgment  was  rendered  on  the  bond  against  A.  and  a  fl.  fa. 
issued.  Property  was  taken,  but  the  Ji.  fa.  was  not  returned. 
Held:  These  proceedings  were  no  bar  to  a  motion  upon  the 
bond  against  W. 

In  the  case  of  Booth  vs.  Kiyisey^  8  Grat.,  560,  565,  decided 
April,  1852.  A  debtor  in  execution  executes  a  forthcoming 
bond  to  the  creditor,  and  a  third  person  and  the  obligee  execute 
the  bond  with  the  debtor,  as  his  sureties.  The  bond  being  for- 
feited, the  obligee  gives  notice  to  the  principal  obligor  and  the 
other  surety  of  a  motion  for  award  of  execution  upon  the  bond 
against  them ;  but  the  notice  does  not  mention  the  obligee  as 
co-obligor.  Held:  That  the  bond  is  a  valid  bond  to  bind  the 
other  surety,  but  that  he  is  only  liable  as  a  co-surety  with  the 
obligee. 

That  if  the  principal  creditor  proves  insolvent  the  surety  may 
be  relieved  to  the  extent  of  one  moiety  of  the  debt,  either  by  bill 

43 


674  Citations  to  the  Code  of  Virginia. 

in  equity,  or  by  motion  under  the  statute  for  the  relief  of  sure- 
ties. The  notice  is  not  defective  for  failing  to  mention  the 
obligee  as  a  co-obligor. 

Section  3213. 

In  the  case  of  Asbury,  etc.,  vs.  Calloway,  etc.,  1  Wash.,  72, 
decided  at  the  spring  term,  1792,  it  was  held:  On  a  motion  on 
a  joint  obligation,  where  one  defendant  after  severance  pleads 
non  est  factum,  such  plea  should  be  determined  by  a  jury  before 
any  judgment  in  the  case  be  entered. 

In  the  case  of  Burke  {Administrator),  etc.,  vs.  Levy's  Execu- 
tors, 1  Rand.,  1,  decided  November,  1821,  it  was  held:  Where 
non  est  factum  is  pleaded  to  a  motion  on  a  forthcoming  bond, 
the  court  may  render  judgment  without  the  intervention  of  a 
jury,  or  they  may  empanel  a  jury  to  try  the  issue  at  their  dis- 
cretion. 

In  the  case  of  McKinster  vs.  Garrot  et  als.,  3  Rand.,  554,  de- 
cided December  1,  1825,  it  was  held :  No  formal  issue  need  be 
joined  on  motion  on  forthcoming  bond,  as  the  pleadings  may  be 
ore  tenus,  and  the  court  may  pronounce  judgment  on  the  evi- 
dence. 

•In  the  case  of  Clajiin  &  Co.  vs.  Steenbock  <&  Co.,  18  Grat., 
842,  decided  June,  1868,  it  was  held,  p.  846 :  On  a  motion  to 
abate  an  attachment  on  the  ground  that  it  was  issued  on  false 
suggestions,  and  without  sufficient  cause,  the  plaintiff  declining 
to  express  any  wish  for  a  jury,  and  the  defendant  expressing  a 
wish  that  a  jury  might  be  dispensed  with,  and  that  the  court 
should  hear  and  decide  the  case,  the  court  should  hear  and  de- 
cide it  without  a  jury. 

The  reference  to  27  Grat.,  608,  is  an  error. 

In  the  case  of  Dunlap  vs.  Dillard  c&  McCorkle,  etc.;  Same  vs. 
Earn  c&  Hickson,  77  Va.,  847,  decided  October  18,  1883,  it  was 
held,  p.  855 :  The  power  given  any  circuit  court  in  vacation, 
under  the  act  of  28th  of  February,  1866,  amending  Code  1860, 
Chapter  151,  Section  148,  to  quash  or  to  dismiss  an  attachment, 
conflicts  not  with,  and  repeals  not,  any  other  provision  of  that 
chapter,  and  was  intended  to  give  the  defendant  a  speedy  and 
summary  remedy  where  he  has  a  clear  defence,  and  to  have  the 
attachment  quashed  or  dismissed,  if  in  the  opinion  of  the  judge 
it  was  sued  out  without  sufficient  cause. 

The  judgment  in  vacation,  under  said  Section  6,  refusing  to 
quash  or  dismiss  the  attachment,  is  not  final,  and  does  not 
supersede  the  defendant's  right  to  make  defence  at  the  trial  in 
term  against  the  attachment  in  any  respect  under  Sections  21, 
22,  and  23  of  said  chapter. 

The  court's  order  for  the  defendant's  delivery  of  the  attached 
and  replevied  property  to  the  sheriff  should  be  reasonable  as  to 
the  time  and  place  of  such  delivery. 


Citations  to  the  Code  of  Virginia.  676 

CHAPTEE    CLVII. 

Section  3214. 

In  the  case  of  Beime  vs.  Bosser  c&  Turner,  26  Grat.,  537,  de- 
"Cided  September  23,  1875,  it  was  held:  R.  brings  assumpsit 
against  B.  in  the  county  of  N.,  and  the  process  is  served  upon 
him.  B.  appears  at  the  rules  and  files  a  plea  in  abatement,  that 
at  the  time  of  the  service  upon  him,  and  at  this  time,  he  was 
not  and  is  not  a  resident  of  N.,  but  was  and  is  an  inhabitant  of, 
and  resides  in,  M.  county.  West  Virginia.  This  plea  does  not  give 
the  plaintiff  a  better  writ  in  this  State,  and  is  therefore  bad. 

In  the  case  of  Warren  vs.  Saunders,  27  Grat.,  259,  decided 
March  9,  1876.  W.  sues  S.  in  assumpsit  in  the  county  of  J., 
and  sends  the  process  to  the  city  of  R.  where  S.  resides,  and  it 
is  served  upon  S.  by  the  sheriff  of  R.  S.  files  a  plea  in  abate- 
ment stating  these  facts,  but  does  not  say  where  the  cause  of 
action  arose.  Held:  The  plea  is  sufficient  in  this  case,  though 
it  does  not  give  the  plaintiff  a  better  writ. 

W.  having  demurred  to  the  plea,  and  the  court  having  sus- 
tained the  demurrer,  when  the  cause  is  called  for  trial  S.  moves 
to  dismiss  the  cause  from  the  docket.  Held :  The  motion  should 
have  been  sustained  and  the  suit  dismissed ;  the  statute  expressly 
providing  that,  when  the  suit  is  brought  where  the  cause  of  ac- 
tion arose,  process  shall  not  be  directed  to  an  officer  of  any 
other  county  or  corporation  than  that  wherein  the  action  is 
brought. 

In  the  case  of  Hull  vs.  Fields  c&  Thomas,  76  Va.,  594. 

Jurisdiction. — Annulment  of  Conveyance. — Case  at  Bar. — 
Under  contract  made  in  S.  county,  H.  executed  deed  conveying 
real  estate  therein  situated  to  F.  &  T.  Later,  in  the  circuit 
court  of  that  county,  H.  brought  suit  against  F.  &  T.  to  rescind 
the  contract  and  vacate  the  deed.  Summons  was  not  served  in 
that  county  on  either  of  the  defendants,  both  of  whom  resided 
elsewhere.  Held :  The  suit  was  properly  brought  in  S.  county 
under  Code  1873,  Chapter  165,  Section  1,  Clause  3,  and  Sec- 
tion 2. 

See  Warren  vs.  Saunders,  27  Grat.,  259,  supra. 

In  the  case  of  Rigland  vs.  Broadnax  et  <ds.,  29  Grat.,  401, 
decided  November,  1877,  it  was  held:  The  Circuit  Court  of  the 
city  of  Richmond  has  no  equity  jurisdiction  except  in  certain 
cases  specified  in  the  statute,  in  which  the  State  is  interested 
or  some  of  the  officers  and  boards  representing  the  Statfe  are 
necessary  or  proper  parties;  and  in  such  cases  its  jurisdiction 
is  exclusive. 

In  the  case  of  Tlie  Commonwealth  (hy,  etc.)  vs.  Tord  et  als.,  29 
Grat.,  683,  decided  January,  1878,  it  was  held,  p.  694 :  A  judg- 
ment in  the  name  of  the  Commonwealth  for  W.,  treasurer  of 


676  Citations  to  the  Code  or  Virginia. 

C.  county,  founded  on  a  notice  in  the  name  of  the  Common- 
wealth, proceeding  by  W.,  late  treasurer  of  C,  against  F.,. 
the  collector  of  township  M.,  and  his  sureties  upon  his  official 
bond,  is  a  judgment  in  favor  of  the  Commonwealth.  On  such 
a  judgment  the  Commonwealth,  at  the  relation  of  T.,  auditor 
of  accounts,  may  maintain  a  suit  against  F.  and  his  sureties. 
The  judgment  having  been  recovered  in  C.  county,  the  suit  may 
be  brought  in  that  county.  Except  in  cases  where  it  is  other- 
vidse  specially  provided  for,  the  Commonwealth  may  prosecute 
her  suits  in  any  of  the  courts  in  which  other  parties  may  prose- 
cute suits  of  like  character. 

In  the  case  of  Blanton  ( CoTnmissioner)  vs.  Southern  Fertilizer 
Company  et  als.,  11  Va.,  335,  decided  March  29,  1883,  it  was 
held:  This  court  has  chancery  jurisdiction  only  in  cases  where 
it  may  be  necessary  or  proper  to  make  certain  enumerated  offi- 
cers or  corporations  defendants.  The  commissioner  of  agricul- 
ture is  not  one  of  these. 

Chancery  has  jurisdiction  to  enjoin  illegal  acts  of  an  officer 
attempted  colore  ojficii.  A  suit  against  an  officer  is  not  neces- 
sarily a  suit  against  the  State,  e.  g.,  a  suit  to  restrain  one  from 
doing  unlawful  acts  under  color  of  an  executive  office,  such  as 
any  illegal  acts  of  the  commissioner  of  agriculture. 

Section  3215. 
For  the  references  here  given,  see  supra,  Section  3214. 

CHAPTER   CLVIII. 

Section  3220. 

In  the  case  of  Kyles  vs.  Ford,  2  Eand.,  1,  decided  November 
7,  1823,  it  was  held:  It  seems  that  where  a  scire  facias  against 
bail  is  returnable  to  a  rule-day,  the  day  of  return  and  of  ap- 
pearance are  the  same.  If  the  writ  is  returnable  to  the  first 
day  of  a  court,  and  that  happens  to  be  a  rule-day,  that  day  is 
also  the  appearance-day.  But  if  a  scire  facias  is  made  return- 
able to  a  rule-day,  and  the  same  day  is  the  first  day  of  the 
court,  the  writ  is  merely  void,  for  in  that  case  it  can  only  be  re- 
turnable to  the  first  day  of  the  court.  Process  made  returnable 
to  a  day  which  is  not  a  return-day  is  void ;  and  a  scire  facias 
cannot  be  amended. 

In  the  case  of  Couch  vs.  Miller,  2  Leigh,  545,  decided  Feb- 
ruary, 1831.  Kfl.  fa.  is  directed  to  the^  sheriff  of  Campbell,  but 
is  delivered  to,  and  levied  by,  the  sergeant  of  Lynchburg,  who 
takes  a  forthcoming  bond  upon  it,  reciting  that  the  writ  had 
been  directed  to  the  sergeant.  Held :  The  writ  gave  no  author- 
ity to  the  sergeant,  and  no  warrant  to  him  to  take  the  forth- 
coming bond ;  and  that  the  bond  is  variant  from  the  execution, 
and  therefore  the  bond  ought  to  be  quashed. 


Citations  to  the  Code  of  Virginia.  677 

In  the  case  of  Hare  vs.  Nihlo,  4  Leigh,  359,  decided  March, 
1833.  A  capias  ad  respondendurtx  is  made  returnable  to  the 
next  term  generally,  instead  of  the  first  day  of  the  term,  as  the 
-statute  requires ;  the  writ  is  executed  before  the  term,  and  re- 
turned to  the  first  day ;  an  office  judgment  is  entered  at  rules ; 
at  the  ensuing  term  defendant  moves  to  quash  the  writ  and  all 
the  proceedings  on  it  at  rules,  on  the  ground  that  the  writ,  be- 
ing returnable  to  the  term  generally,  was  naught;  and  the  court 
-overrules  the  motion.    Held :  The  motion  was  rightly  overruled. 

In  the  case  of  Ilickam  vs.  Larkey,  6  Grat.,  210,  decided  July, 
1849,  it  was  held :  A  defendant  in  an  action  at  law,  not  having 
-entered  his  appearance  either  at  rules  or  in  term,  has  a  right, 
on  the  calling  of  the  cause,  to  object  that  it  has  not  been  legally 
matured  for  trial.  In  considering  such  objection,  all  the  pro- 
cesses, returns,  and  proceedings  are  necessarily  parts  of  the 
record,  and  are  to  be  looked  into.  A  writ  which  purports  to  be 
&  pluries  capias,  but  which  is  without  date,  and  is  not  attested 
by  the  clerk,  is  wholly  null  and  void  as  process;  and  an  order 
based  thereon  directing  a  proclamation  to  issue,  and  all  the 
subsequent  proceedings,  are  without  warrant  and  illegal. 

See  the  case  of  Warren  vs.  Saunders,  cited  ante,  Section  3214. 

Section  3224. 

The  reference  to  11  Va.  Law  Journal,  627,  is  an  error,  not  in 
point. 

In  the  case  of  Andrews  vs.  Fitzpatrick,  89  Va.,  438,  decided 
December  1,  1892,  it  was  held :  Unless  the  office  of  coroner  is 
vacant,  or  the  incumbent  under  disability,  a  constable  cannot 
lawfully  serve  a  process  directed  to  the  sheriff.  Such  is  no 
legal  service,  and  should  be  quashed. 

Section  3225. 
-  In  the  case  of  The  Bank  of  Virginia  vs.  Craig,  6  Leigh,  399, 
decided  May,  1835.  Bill  filed  by  the  sureties  of  a  guardian, 
and  the  president  and  directors  of  the  Bank  of  Virginia,  not  the 
president,  directors  and  Company  of  the  Bank  of  Virginia,  which 
is  its  corporate  name ;  injunction  ordered  by  the  court  against 
the  guardian,  to  restrain  him  from  selling  his  ward's  stock  in 
bank ;  a  suhpoina,  with  an  injunction  endorsed  by  the  clerk,  to 
restrain  the  directors  and  president  of  the  bank  from  permitting 
the  guardian  to  transfer  the  stock,  is  served  on  the  president. 
This  process,  so  served,  does  not  bind  the  bank ;  nor  is  it  even 
notice  to  the  bank,  actual  or  constructive,  of  the  equity  asserted 
by  the  guardian's  sureties  in  their  bill,  since  the  bank  in  its 
corporate  character  is  not  party  to  the  bill,  and  the  president 
is  not  the  officer  of  the  bank  whose  province  it  is  to  receive 
such  notice. 


678  Citations  to  the  Code  of  Vieginia. 

In  the  case  of  Mason  vs.  Farmers'  Bank  of  Petersburg,  12 
Leigh,  84,  decided  March,  1841,  Upon  the  construction  of  the 
statute  "authorizing  suits  against  branch  banks  in  this  Com- 
monwealth." Held:  A  suit  cannot  be  maintained  against  the 
president  and  directors  of  the  branch ;  the  suit  must  still  be 
brought  against  the  principal  bank  by  its  corporate  name. 

In  the  case  of  The  Bank  of  the  United  States  et  als.  vs.  The 
Merchants'  Bank  of  Baltimore,  1  Rob.,  573  (2d  edition,  605). 
Under  the  act  in  1  Rev.  Code  1819,  Chapter  123,  p.  474,  direct- 
ing the  method  of  proceeding  in  courts  of  equity  against  absent 
debtors,  a  creditor  of  a  corporation  created  by  another  State 
may  maintain  a  suit  in  equity  against  such  corporation  as  a  de- 
fendant out  of  this  Commonwealth,  where  there  are  persons 
within  the  same  who  have  in  their  hands  effects  of,  or  are  in- 
debted to,  such  absent  defendant;  or  may  maintain  a  suit  in 
equity  against  such  corporation  as  an  absent  defendant,  where 
it  has  lands  or  tenements  within  the  Commonwealth. 

In  the  case  of  Balti'more  &  Ohio  Railroad  Company  vs.  Gal- 
lahue's  Administrators,  12  Grat.,  655,  decided  September  11,. 
1855,  it  was  held,  p.  661 :  The  Baltimore  &  Ohio  Railroad  Comr 
pany  is  a  corporation  of  the  State  of  Virginia,  and  although  its 
principal  office  is  in  Maryland,  and  its  principal  officer  resides 
there,  it  may  be  sued  in  Virginia  on  contracts  made  here, 

A  corporation  may  be  summoned  and  proceeded  against  as  a 
garnishee.  When  the  word  "person"  is  used  in  a  statute,  cor- 
porations as  well  as  natural  persons  are  included  for  civil  pur- 
poses. When  a  corporation  is  proceeded  against  as  a  garnishee, 
its  answer  is  to  be  received  in  the  only  mode  in  which  a  cor- 
poration can  answer,  under  its  corporate  seal. 

The  reference  to  16  Grat.,  314-317,  is  an  error. 

In  the  case  of  Fairfax  vs.  City  of  Alexandria^  28  Grat.,  16, 
decided  January,  1877,  it  was  held :  In  a  proceeding  to  confis- 
cate property  of  a  person  charged  to  be  in  rebellion,  the  direc- 
tions of  the  attorney-general  are,  that  the  method  of  seizure  of 
the  property  shall  be  conformed  as  nearly  as  may  be  to  the  State 
laws,  if  there  be  such.  When,  therefore,  the  proceeding  is  to 
confiscate  debts  due  from  a  municipal  corporation,  the  notice  to 
the  debtor  must  be  to  the  mayor  or  other  officer  named  in  Vir- 
ginia statute ;  and  notice  given  to  the  auditor  of  the  corporation 
is  of  no  effect ;  and  the  judgment  based  upon  such  notice  is  null 
and  void. 

In  the  case  of  Shenandoah  Valley  Railroad  Company  vs.  J. 
T.  Griffith  et  als.,  76  Va.,  913  and  922. 

Return. — Appellate  Court. — An  objection  to  a  defective  return 
of  the  service  of  process,  made  here  for  the  first  time,  is  too 
late. 

In  the  case  of  Dillard  vs.  Central  Virginia  Iron  Company,  82. 


Citations  to  the  Code  of  Virginia.  679 

Va.,  734,  decided  January  13,  1887,  it  was  held:  Section  3232 
applies  only  to  non-resident  defendants  who  are  natural  per- 
sons, and  not  to  corporations  nor  their  agents.  Service  of  pro- 
cess upon  corporations  must  be  in  this  State  upon  an  ofl&cer  or 
agent  resident  here. 

In  the  case  of  N.  d;  W.  R.  R.  Co.  vs.  Cottrell,  83  Va.,  512,  de- 
cided June  30,  1887,  it  was  held:  The  service  on  any  corpora- 
tion, other  than  a  bank  of  circulation,  may  be  on  any  agent 
thereof  in  the  county  or  corporation  in  which  he  resides,  or  in 
which  the  principal  office  of  the  company  is  located,  whatever 
may  be  the  employment  of  such  agent. 

Section  3227. 
In  the  case  of  Rauh  vs.  OtterbacJc,  89  Va.,  645,  decided  Feb- 
ruary 16,  1893,  it  was  held:  A  writ  which  summoned  defend- 
ants "before  the of  our  circuit  court"  is  meaningless.     A 

writ  returnable  at  rules  "  on  the  first  day  of  the  next  term,  1889," 
that  day  being  the  second  Monday  in  June,  whereas  there  was 
no  rule  until  the  third  Monday,  was  invalid. 

Section  3229. 

In  the  case  of  Lee  <&  Fitzhugh  vs.  Chilton,  5  Munf.,  407,  de- 
cided February  7,  1817,  it  was  held :  On  a  writ  of  scire  facias 
against  bail,  a  return  by  the  sheriff  that  the  defendant  is  no  in- 
habitant of  his  bailiwick,  and  is  not  found  within  the  same,  is 
not  a  sufficient  return  of  nihil;  but  it  should  be  stated,  also,  that 
he  has  nothing  in  the  bailiwick  by  which  he  could  be  sum- 
moned. 

Section  3230. 

In  the  case  of  The  United  States  {Incorporated  hy  Pennsyl- 
vania and  others)  vs.  The  Mer(^ants'  Bank  of  Baltimore,  1  Rob., 
573  (2d  edition,  605).  Under  the  act  in  1  Revised  Code,  1819, 
Chapter  123,  page  474,  directing  the  method  of  proceeding  in 
courts  of  equity  against  absent  debtors,  a  creditor  of  a  corpora- 
tion created  by  another  State  may  maintain  a  suit  in  equity 
against  such  corporation  as  a  defendant  out  of  this  Common- 
wealth, where  there  are  persons  within  the  same  who  have  in 
their  hands  effects  of,  or  are  indebted  to,  such  absent  defend- 
ant ;  or  may  maintain  a  suit  in  equity  against  such  corporation 
as  an  absent  defendant,  where  it  has  lands  or  tenements  within 
the  Commonwealth. 

In  the  case  of  The  Baltimore  (&  Ohio  Railroad  Company  vs. 
Gallahue's  Administrators,  12  Grat.,  655,  decided  September  11, 
1855,  it  was  held:  Where  the  word  "person"  is  used  in  a  stat- 
ute, corporations  as  well  as  natiiral  persons  are  included  for 
civil  purposes. 

In  the  case  of  Dorr's  Administrators  vs.  Rohr  et  als.,  82  Va., 


680  Citations  to  the  Code  of  Virginia. 

359,  decided  September  16,  1886,  it  was  held :  During  the  war 
between  the  Confederate  States  and  the  United  States  an  order 
of  pubHcation  executed  in  Virginia  was  without  legal" effect,  and 
was  no  notice,  actual  or  constructive,  upon  a  resident  of  New 
York. 

This  is  the  case  cited  from  10  Virginia  Law  Journal,  720. 

In  the  case  of  The  Wytheville  hisurance  Company  vs.  Stultz, 
87  Va.,  629,  decided  April  9,  1891,  it  was  held:  Where  a  com- 
pany that  does  business  both  in  banking  and  insurance  is  sued 
on  a  policy  in  the  county  where  the  insured  property  lies,  and 
there  is  no  agent  residing  there  on  whom  process  may  be  served, 
an  order  of  publication  is  proper. 

Section  3231. 

See  the  references  given  to  Section  3358. 

In  the  case  of  Hunter's  Executor  and  Hemdoris  Executors  vs. 
Spotswood,  1  Washington,  145,  decided  at  the  fall  term,  1792. 
There  was  an  order  of  publication,  not  noted  in  the  record.  A 
certificate  was  produced  from  the  clerk  of  the  high  court  of 
chancery  stating  that  due  publication  had  been  made.  Held : 
Insufficient.     The  order  must  appear  in  the  record. 

In  the  case  of  MyHck  {Administrator  of  Lundie)  vs.  Adams, 
4  Munf.,  366,  decided  January  30,  1815,  it  was  held:  Proof  that 
an  order  of  publication  has  been  inserted  in  a  newspaper  for 
two  months  is  not  sufficient.  It  should  also  be  proved  that  a 
copy  was  posted  at  the  front  door  of  the  house  in  which  the 
court  is  held. 

In  the  case  of  Craig  vs.  Sebrill,  9  Grat.,  131,  decided  August 
2,  1852,  it  was  held :  In  a  suit  in  which  there  is  an  absent  de- 
fendant, the  decree  recites  that  the  cause  came  on,  as  to  him, 
upon  the  bill,  etc.,  and  upon  order  of  publication  duly  executed. 
This  is  conclusive  that  the  order  was  duly  made,  published  in 
the  newspaper,  and  posted  at  the  front  door  of  the  court- 
house. 

In  the  case  of  Moore  et  als.  vs.  Holt,  10  Grat.,  284,  decided 
July,  1853,  it  was  held,  p.  291 :  The  decree  states  that  the  or- 
der of  publication  against  the  absent  defendant  has  been  duly 
published.  It  is  to  be  taken  in  an  appellate  court  that  every- 
thing required  by  the  statute  was  done. 

Section  3232. 

In  the  case  of  Anderson  vs.  Johnson,  32  Grat.,  558,  decided 
December  18,  1879,  it  was  held :  The  certificate  of  M.,  describ- 
ing himself  as  a  justice  of  the  peace  of  the  county  of  B.,  in  the 
State  of  Ohio,  that  P.,  a  deputy-sheriff  of  said  county  and 
State,  had  made  oath  before  him,  the  said  M.,  of  the  delivery 
to  the  defendant  of  the  copy  of  the  summons  and  attachment. 


Citations  to  the  Code  of  Virginia.  681 

not  objected  to  in  the  court  below,  cannot  be  objected  to  in  the 
appellate  court. 

In  the  case  of  Smith  <&  Wimsatt  vs.  Chilton,  Assignee  ;  Boyd 
M.  Smith  vs.  Same,  77  Va.,  535,  decided  May  10,  1883.  In 
1878  C.  sued  out  foreign  attachments  against  S.  &  W.,  non- 
residents, and  L.,  home  defendant.  The  original  summons  was 
served  on  L.,  and  as  to  S.  &  W.  was  returned  "  S.  &  W.  non- 
residents." After  the  return-day  another  summons  was  re- 
turned endorsed,  "■  Hereby  we  acknowledge  legal  service  of  the 
within,"  which  acknowledgment  was  made  in  the  District  of 
Columbia.  In  1879  sale  of  the  attached  effects  was  decreed. 
In  ]  880,  before  the  decree  was  executed,  S.  &  W.  appeared  and 
petitioned  that  the  cause  be  reheard.  The  circuit  court  dis- 
missed the  petitions.  Held  :  The  acknowledgment  by  S.  &  W. 
of  legal  service  within  the  District  of  Columbia  must  be  treated 
as  equivalent  to  an  order  of  publication  duly  posted  and  pub- 
lished, and  no  more.  Such  acknowledgment  did  not  give  the 
court  jurisdiction  over  the  persons  of  the  defendants  so  as  to 
entitle  it  to  render  personal  decrees  against  them,  but  it  had 
the  effect  of  substituted  service  under  Code  1873,  Chapter  166, 
Section  15,  and  brought  these  causes  within  the  purview  of  Sec- 
tion 27,  Chapter  148,  Code  1873,  and  entitled  the  defendants,  at 
any  time  within  five  years  from  the  date  of  the  decree,  to  have 
the  cause  reheard.  The  acknowledgment  of  the  service  sixty 
days  before  the  date  of  the  decrees  complained  of  does  not  mil- 
itate against  the  defendants'  right  to  have  the  causes  reheard. 

In  the  case  of  Burwell  et  als.  vs.  BurwelVs  Guardian,  78  Va., 
674,  decided  January  31,  1884,  it  was  held :  Where  order  of 
publication  has  been  duly  executed  against  non-resident  or  un- 
known defendants,  no  other  notice  is  required  to  be  given  them 
in  any  proceedings  in  court  or  before  a  commissioner,  or  for  the 
purpose  of  taking  depositions,  unless  specially  ordered  by  the 
court,  if  those  defendants  shall  not  appear  within  one  month  after 
completion  of  publication.  But  if  they  so  appear,  then  they  are 
entitled  to  notice  in  all  the  subsequent  proceedings  in  the  suit. 

In  the  case  of  Dillard  vs.  Central  Virginia  Iron  Company, 
82  Va.,  734,  decided  January  13, 1887,  it  was  held:  This  section 
applies  only  to  non-resident  defendants  who  are  natural  per- 
sons, and  not  to  corporations  or  their  agents.  Service  of  pro- 
cess upon  corporations  must  be  in  this  State  upon  an  officer  or 
agent  resident  here,  according  to  Code,  Section  3225.  Suit 
is  brought  in  a  county  in  this  State  against  a  corporation 
domiciled  in  that  county,  and  process  is  served  upon  the 
president  of  the  companj^  resident  in  Philadelphia,  by  a  third 
party,  who  make  affidavit  as  required  by  this  section.  Held : 
Such  service  is  insufficient  to  give  the  court  jurisdiction. 

This  is  the  case  cited  in  11  Virginia  Law  Journal,  351. 


682  Citations  to  the  Code  op  Virginia. 

Section  3233. 

In  the  case  of  Bootes  [Executor)  vs.  TomJcins  {Trustee),  3  Grat.^ 
98,  decided  April,  1846,  it  was  held:  The  statute  directing  the 
decree  against  an  absent  debtor  to  stand  absolutely  confirmed 
against  the  absent  debtor  who  shall  not  within  seven  years  ap- 
pear and  petition  to  have  the  cause  reheard,  only  applies  to  so 
much  of  such  decree  as  operated  upon  the  estate  or  effects  of 
such  absent  debtor,  subject  to  the  jurisdiction  of  the  courts 
of  this  Commonwealth.  A  decree  in  personam  against  an  ab- 
sent debtor  is  entitled  to  all  the  respect  to  which  any  other 
decree  is  entitled  in  all  collateral  controversies.  So  if  the 
property  is  sold  under  an  execution  issued  thereon,  the  title  to 
said  property  cannot  be  impeached  by  objections  to  the  form 
or  merits  of  the  decree. 

A  decree  against  an  absent  debtor  merges  the  original  cause 
of  action,  so  far  as  to  enable  the  plaintiff  to  rely  thereon  in  any 
subsequent  proceeding  to  enforce  it,  b,^  prima  faae  evidence  of 
the  demand  it  establishes,  and  to  repel  the  statute  of  limitations- 
except  so  far  as  the  statute  may  apply  to  judgments  or  de- 
crees. 

Such  a  decree,  so  far  as  it  reaches  beyond  the  cause  or  thing 
subject  to  the  jurisdiction  of  the  court,  and  purports  to  operate  in 
personam  merely,  so  as  to  create  a  personal  charge  alone,  is  not 
of  such  binding  and  conclusive  character  as  to  preclude  all  in- 
quiry into  the  merits  thereof,  notwithstanding  more  than  seven 
years  have  elapsed  since  it  was  pronounced ;  but  it  may  be 
shown  to  be  erroneous,  either  upon  its  face,  or  by  evidence  ali- 
unde. 

Decrees  against  absent  defendants  have  the  same  effect  as 
decrees  against  absent  debtors,  and  so  far  as  the  decree  operates 
upon  a  subject  within  the  jurisdiction  of  the  court,  the  interests 
of  such  absent  defendant  therein  are  conclusively  bound  by  the 
decree,  unless  he  shall  appear  and  petition  for  a  rehearing  within 
seven  years.  But  the  limitation  of  seven  years  has  no  appli- 
cation to  so  much  of  the  decree  as  acts  in  personam,  and  estab- 
lishes a  personal  demand. 

In  the  case  of  James  River  &  Kanawha  Company  vs.  Lit- 
tUjohn,  18  Grat.,  53,  decided  October,  1867,  it  was  held:  In  a 
suit  in  which  there  is  an  absent  defendant,  there  is  a  decree 
against  the  home  defendant,  from  which  he  appeals.  Pending 
the  appeal,  the  absent  defendant  may  file  his  petition  in  the 
court  below  to  be  permitted  to  appear  and  file  his  answer  in  the 
cause,  and  may  have  the  decree  reheard  and  set  aside  if  it  is 
erroneous  as  to  him. 

If  upon  such  rehearing  the  decree,  or  so  much  of  it  as  is  the 
subject  of  appeal,  is  wholly  set  aside,  the  appeal  will  generally 
be  dismissed.     But  if  an  appeal  is  taken  from  the  decree  on. 


Citations  to  the  Code  op  Virginia.  683 

the  rehearing  before  the  dismissal  of  the  first  appeal,  the  appel- 
late court  may  refuse  to  dismiss  it. 

In  the  case  of  Cralle  vs.  Cralle,  79  Va.,  182,  decided  May  1, 
1884,  it  was  held:  Defendants  not  served  with  process  and  not 
appearing  may,  if  not  served  with  a  copy  of  the  judgment  more 
than  a  year  before  the  end  of  five  years  from  its  date,  within 
such  five  years  have  the  case  reheard;  and  if  so  served  more 
than  a  year  before  the  end  of  such  five  years,  may  do  so  within 
a  year  from  such  service. 

CHAPTEK  CLIX. 

Section  3236. 

In  the  case  of  Bolts  vs.  Pollard,  11  Leigh,  433,  decided  No- 
vember, 1840,  it  was  held :  The  rules  shall  be  kept  open  for  all 
purposes  as  long  as  the  statute  permits. 

Section  3240. 

In  the  case  of  Boss  vs.  Gill  et  ux.,  1  Wash.,  87,  decided  at 
the  spring  term,  1792,  it  was  held  :  The  court  has  no  power  to 
direct  a  non-suit.  They  may  advise  it  and  direct  the  plaintiff 
to  be  called,  but  if  he  refuse  to  suffer  a  non-suit  the  court  can 
only  enforce  their  opinion  by  directing  a  new  trial  in  case  the 
jury  finds  against  their  direction. 

The  reference  to  6  Rand.,  674,  is  an  error. 

In  the  case  of  Walker  vs.  Boaz,  2  Rob.,  485,  decided  Novem- 
ber, 1843.  A  non-suit  in  a  writ  of  right  having  been  suffered 
under  misapprehension  on  the  part  of  the  demandants  and 
their  counsel  as  to  the  legal  effect  of  an  instruction  given  at 
the  trial,  held :  The  court  in  the  exercise  of  a  sound  discre- 
tion should,  on  the  motion  of  the  demandants,  have  set  aside 
the  non-suit,  and  this  not  having  been  done,  the  judgment 
overruling,  such  motion  was  reversed. 

Section  3241. 

In  the  case  of  Buchanan  et  als.  vs.  King's  Heirs,  22  Grat., 
414,  decided  July  13,  1872,  it  was  held:  It  is  the  duty  of  a 
clerk  to  dismiss  a  suit  when  the  process  is  served  and  the  bill 
is  not  filed  within  the  time  prescribed  by  the  statute.  But  if 
the  bill  is  filed  before  an  order  of  dismissal  is  entered,  and  the 
defendant  answers  without  insisting  upon  the  dismissal  of  the 
suit,  and  consents  to  the  hearing  of  the  cause,  he  thereby  waives 
the  objection. 

Section  3242. 

In  the  case  of  Brown  vs.  Belches,  1  Wash.,  9,  decided  at  the 
spring  term,  1791.  In  an  action  on  the  case  for  a  partnership 
debt  there  was  a  return  of  "no  inhabitant,"  and  an  abatement 


684  Citations  to  the  Code  op  Virginia. 

as  to  him ;  judgment  against  the  other  partner.     Judgment  af- 
firmed. 

Section  3243. 

In  the  case  of  Shaver  vs.  White  and  Doiightery,  6  Munf.,  110, 
decided  February  9, 1818,  it  was  held :  Actions  may  be  brought 
in  the  courts  of  this  State  under  contracts  entered  into,  or  per- 
iBonal  injuries  committed,  anywhere.  In  general,  it  is  not  neces- 
sary to  state  in  the  declaration  where  the  contract  arose  or  the 
injury  was  committed;  but  this  is  sometimes  necessary,  and 
then,  for  the  sake  of  obviating  the  objection  of  a  variance,  or 
the  like,  the  plaintiff  is  permitted  to  state,  by  a  fiction  under  a 
videlicet,  that  the  place  is  within  the  jurisdiction  of  the  court  in 
which  the  suit  is  brought;  which  fiction,  being  in  furtherance  of 
justice,  cannot  be  traversed.  In  cases  in  which  the  plaintiff 
does  not  use  this  fiction,  the  defendant  is  not,  in  general,  per- 
mitted to  aver  that  the  cause  of  action  arose  in  another  country, 
unless  he  wishes  to  justify  the  act  by  the  laws  of  that  country, 
or  to  show  thereby  that  he  is  not  responsible  in  the  particular 
form  of  action  in  question;  in  which  cases  the  locality  of  the 
act  forms  an  essential  part  of  his  defence ;  but  such  plea  does 
not  go  to  the  jurisdiction  of  the  court,  but  only  to  the  justifica- 
tion of  the  defendant.  It  is  a  principle  that,  if  a  party  be  justi- 
fied as  to  a  transaction  in  the  country  or  place  in  which  it  is 
committed,  he  is  justifiable  everywhere. 

In  the  case  of  Payne  vs.  Britton's  Executor^  6  Rand.,  102,  de- 
cided Januaiy,  1828,  it  was  held :  In  this  State  it  is  not  error 
that  the  venue  is  laid  in  one  county,  and  the  action  is  brought 
in  another,  unless  the  defendant  is  an  inhabitant  of  another 
county,  and  moves  to  dismiss  the  suit  for  that  cause. 

Section  3244. 

In  the  case  of  Thornton  vs.  Smith,  1  Wash.,  81,  decided  at 
the  spring  term,  1792,  it  was  held:  The  allegation  "within  the 
jurisdiction  of  the  couii"  is  necessary,  and  cannot  be  supplied 
by  equivalent  words ;  hence  the  statute. 

In  the  case  of  Hughes  vs.  Clayton  et  ux.,  3  Call,  554  (2d  edi- 
tion, 478),  it  was  held :  If  an  administrator  brings  detinue,  he  is 
not  bound  at  the  trial  to  produce  the  certificate  for  his  obtain- 
ing letters  of  administration,  unless  he  receives  notice  that  it 
will  be  required. 

In  the  case  of  Hill  vs.  Pride,  4  Call,  167,  decided  October, 
1787,  in  the  General  Court,  it  was  held :  The  jurisdiction  must 
be  averred  in  courts  of  limited  authority  as  well  in  real  as  in 
transitory  actions.  This  ruling,  of  course,  is  now  reversed  by 
the  effect  of  the  statute,  which  probably  was  passed  because  of 
the  decision. 

In  the  case  of  Jarretts  Administrators  vs.  Jarrett,  7  Leigh, 


1 


CiTATIONB  TO  THE  CODE  OF  YiEGINIA.  68& 

93,  decided  January,  1836,  it  was  held:  If  in  an  action  on  a 
deed  plaintiff  makes  profert  of  the  deed,  it  is  thereby  made  a 
part  of  the  declaration ;  and  defendant  cannot  object  to  the 
deed  as  evidence  at  the  trial  on  the  ground  of  variance. 

In  the  case  of  Sterrett  vs.  Teaford,  4  Grat.,  84,  decided  July, 
1847,  it  was  held  :  To  take  advantage  by  demurrer  of  a  variance 
between  the  declaration  and  the  bond  declared  on,  the  defendant 
must  crave  oyer  of  the  bond. 

In  the  case  of  Smith's  Administrator  vs.  Zoyd's  Executor^  16 
Grat.,  295,  decided  March  5,  1862,  it  was  held:  In  action  of 
debt  upon  a  bond,  plaintiff,  to  excuse  the  non-production  of  the 
bond,  in  answer  to  oyer  craved  by  the  defendant,  says  the  bond 
is  filed  in  another  court;  that  he  applied  to  that  court  for  it; 
that  his  application  was  opposed  by  the  defendant,  and  was  re- 
fused by  the  court.  This  is  sufficient  excuse  for  not  producing 
the  original  bond.  An  excuse  for  not  producing  the  original 
bond  sued  on  may  be  ore  terms.  In  this  case  the  excuse  was 
made  in  the  form  of  a  plea,  which  is  demurred  to.  The  de- 
murrer does  not  authorize  the  court  to  decide  upon  errors  in 
the  declaration. 

In  considering  a  demurrer  to  a  declaration,  where  oyer  is 
craved  of  the  bond  sued  upon,  the  court  can  only  look  at  the 
declaration  and  bond,  and  if  words  in  the  bond,  without  the 
condition  of  extraneous  facts,  are  insensible,  they  will  be  treated 
as  surplusage.  If  the  bond  or  deed  sued  on  is  not  filed  with 
the  declaration,  and  the  defendant  appears  at  rules  and  craves 
oyer  of  it,  which  the  plaintiff  does  not  give,  and  the  defendant 
will  not  plead  without  oyer,  the  clerk  may  properly  take  the 
rules  without  regard  to  the  craving  of  oyer,  so  that  the  case 
may  be  ready  to  be  disposed  of  at  the  next  term  of  the 
court. 

Section  3248. 

In  the  case  of  Moore  vs.  Mauro,  4  Rand.,  488,  decided  No- 
vember, 1826,  it  was  held :  Under  Section  86  of  the  act  concern- 
ing proceedings  in  civil  suits,  etc.,  an  account  filed  in  an  action 
of  indehitdtiis  assumpsit,  which  gives  notice  of  the  character  of 
a  claim,  is  sufficient,  although  it  may  be  made  up  of  various 
items  of  which  no  notice  is  given. 

In  the  case  of  Fitch  vs.  Leitch,  11  Leigh,  471,  decided  Jan- 
uary, 1841.  The  plaintiff  in  assumpsit  files  with  his  declaration 
an  account  commencing  in  these  words,  "  1833,  January  1,  to 
balance  due  per  account  rendered,  $1,465.07,"  which  account  he 
produces  at  the  trial,  and  a  witness  is  introduced  to  prove  that 
at  the  date  of  this  item  the  plaintiff  delivered  to  the  defendant 
a  full  bill  of  account  to  the  amount  of  $1,405.07,  and  that  the 
defendant  acknowledged   the  same,    and  promised  to  pay  it. 


686  Citations  to  the  Code  op  Virginia. 

Held :  Such  proof  may  be  received  under  the  insimul  compu- 
tasent  count. 

In  the  case  of  Bohinson  &  Meem  vs.  Burks,  12  Leigh,  378, 
decided  October,  1841,  it  was  held:  Under  the  statute,  1  Eev. 
Code,  Chapter  128,  Section  86,  an  account  filed  with  declaration 
in  assumpsit  for  goods  sold,  charging  goods  sold  "  per  account 
rendered,"  with  proof  that  the  account  was  rendered,  is  suffi- 
cient. 

In  the  case  of  Minor  vs.  Minor's  Administrators,  8  Grat.,  1, 
decided  July,  1851,  it  was  held:  The  count  in  an  action  of  as- 
sumpsit by  an  administrator  for  money  had  and  received,  and 
the  bill  of  particulars  merely  states  an  account  in  which  the  de- 
fendant is  debtor  to  the  administrator  for  money  received,  stat- 
ing a  sum  certain ;  the  count  and  the  bill  of  particulars  are  not 
sufficient  to  admit  proof  of  an  admission  by  the  defendant  that 
he  had  received  from  a  third  person  a  certain  sum  belonging  to 
the  estate  of  the  plaintiff's  intestate. 

In  the  case  of  Central  Lunatic  Asylum,  vs.  Flanagan,  80  Va., 
110,  decided  January  15,  1885,  it  was  held :  In  action  for  dam- 
ages, defendant's  motion  that  plaintiff  be  required  to  file  a  bill  of 
particulars  is  then  denied,  but  at  the  next  term  it  is  allowed, 
and  plaintiff  files  the  bill,  and  trial  proceeds  without  defendant 
asking  for  time  to  consider  of  his  defence.  He  cannot  raise  the 
objection  in  the  appellate  court. 

In  the  case  of  Wright  vs.  Smithy  81  Va.,  777,  decided  April, 
29,  1886,  it  was  held :  Account  filed  with  declaration,  under 
statute,  is  part  of  the  declaration. 

In  the  case  of  Kenefeck  vs.  Caulfield,  88  Va.,  122,  decided 
June  25,  1891.  There  was  a  declaration  in  assumpsit  which 
stated  the  date  of  the  account  tiled  therewith,  which  was  pre- 
sented as  a  debt  due  at  the  institution  of  the  suit,  and  verdict 
was  rendered  accordingly.  Held:  No  error  that  the  account 
was  not  dated. 

Section  3251. 

In  the  case  of  Valley  Mutual  Li fe  Association  ys,.  Treewalt,  79 
Va.,  421,  decided  October  2,  1884,  it  was  held :  Declaration 
drawn  in  substantial  conformity  with  the  statute  is  sufficient. 

In  the  case  of  Yirginvt  Fire  a7id  Marine  Insurance  Com^pany 
vs.  Saunders,  84  Va.,  210,  decided  December  8,  1887,  it  was 
held :  A  declaration  showing  plaintiff's  intention  to  proceed  un- 
der the  statute  "  to  simplify  declarations  in  actions  against  in- 
surance companies,"  is  a  good  statutory  declaration,  even  though 
largely  following  the  form  of  a  declaration  in  debt. 

In  the  case  of  Tilley  vs.  Connecticut  Fire  Insurance  Company ^ 
86  Va.,  811,  decided  April  10,  1890,  it  was  held :  In  action  on 
policy  it  is  sufficient  that  the  declaration  refer  to  policy  and 


■ 


Citations  to  the  Code  op  Virginia.  687 

allege  in  general  terms  the  performance  of  all  its  conditions  and 
the  violation  of  none  of  its  prohibitions,  and  it  is  not  necessary 
that  it  allege  that  there  had  been  an  award,  though  policy  pro- 
vides that  no  suit  be  sustainable  until  after  an  award. 

Section  3253. 

In  the  case  of  Holland  et  xox.  vs.  Trotter,  22  Grat.,  136,  de- 
cided April  10,  1872,  it  was  held :  As  a  general  rule  the  court 
will  at  any  time  before  the  hearing  grant  leave  to  amend  where 
the  bill  is  defective  as  to  parties,  or  in  the  mistake  or  omission 
of  any  fact  or  circumstance  connected  with  the  substance  of  the 
bill,  or  not  repugnant  thereto.  The  amendment  may  be  made 
by  common  order  before  answer  or  demurrer,  and  afterwards 
by  leave  of  court. 

In  the  case  of  Buchanan  vs.  King's  Heirs,  22  Grat.,  414,  de- 
cided July  13,  1872,  it  was  held:  It  is  the  duty  of  the  clerk  to 
dismiss  a  suit  when  the  process  is  served,  and  the  bill  is  not 
filed  in  the  time  prescribed  by  the  statute ;  but  if  the  bill  is  filed 
before  an  order  of  dismissal  is  entered,  and  the  defendant  an- 
swers without  insisting  upon  the  dismissal  of  the  suit,  and  con- 
sents to  a  hearing  of  the  cause,  he  thereby  waives  the  objec- 
tion. 

Section  3254. 

In  the  case  of  McConico  vs.  Mosely,  4  Call,  360,  decided  Octo- 
ber, 1798,  it  was  held  :  Whether  the  court  of  chancery  should 
postpone  the  original  cause  until  the  cross  suit  is  ready,  that 
both  may  be  heard  together,  is  discretionary,  and  the  discretion 
is  to  be  exercised  as  circumstances  may  require  for  the  attain- 
ment of  justice. 

Affected  delay  in  preparing  the  cross  suit  for  hearing  would 
be  just  cause  for  proceeding  to  hear  the  original  bill. 

Suits  between  different  parties  claiming  the  same  property 
will  be  heard  together  to  avoid  decrees  that  might  clash  with 
each  other. 

In  the  case  of  Hudson  et  nls.  vs.  Hudson's  Executors,  3  Rand., 
117,  decided  December,  1824,  it  was  held:  The  plaintiff  in  a 
cross  bill  cannot  contradict  the  assertions  in  his  answer  in  the 
original  suit. 

In  the  case  of  Metterfs  Administrator  vs.  Hagan,  18  Grat., 
231,  decided  January,  1868.  M.,  in  his  lifetime,  conveyed  by 
deed  to  H.  M.'s  interest  in  the  estate  of  J.,  deceased,  upon  the 
consideration,  as  expressed  in  the  deed,  of  one  thousand  dollars. 
After  the  death  of  M.,  H.  tiles  his  bill  to  recover  the  said  in- 
terest; and  M.'s  administrator  resists  it,  on  the  ground  that  M. 
was  incapable  from  drink  of  making  a  contract,  and  that  the 
deed  was  obtained  by  the  fraud  of  H.,  and  that  H.  gave  no  con- 
sideration for  it.    The  evidence  touching  M.'s  competency  being 


688  Citations  to  the  Code  op  Virginia. 

contradictory,  and  there  being  some  proof  tliat  M.  had  confirmed 
the  deed  after  its  execution,  held:  Though,  according  to  the 
strict  rules  of  pleading,  a  bill  or  cross-bill  should  have  been 
filed  to  set  aside  the  deed,  yet  the  answer  of  M.'s  administrator 
may,  for  that  purpose,  be  treated  as  a  cross-bill,  so  as  to  enable 
the  court  to  do  ample  justice  in  the  cause. 

In  the  case  of  Moorman  vs.  Sraoot  and  Wife  et  ah.,  28  Grat., 
80,  decided  January,  1877.  There  were  nine  children  tenants 
in  common  of  slaves  subject  to  the  life  estate  of  their  mother. 
One  of  them,  J.,  by  his  will  gives  to  his  brother  K.  certain  lands, 
plantation  utensils,  and  "all  the  interest  I  may  have  in  an 
undivided  dower  estate."  J.'s  widow  marries  T.,  and  T.  buys 
the  shares  of  six  of  the  children,  one  of  them  K.,  and  he  buys 
of  the  husband  of  N.,  one  of  the  children,  her  share,  but  her  hus- 
band dies  in  the  lifetime  of  N.  and  her  mother.  K.  dies  and  gives 
his  interest  under  the  will  of  J.  to  Y.  T.  sells  two  of  the  slaves 
to  M. ;  M.  afterwards  sells  them  and  the  increase  of  one  of  them 
for  nine  hundred  and  sixty  dollars.  T.  and  his  wife  have  removed 
from  the  State.  After  the  death  of  the  life-tenant,  S.,  who  had 
not  sold  her  interest  in  the  slaves,  files  her  bill  against  M.,  making 
N.  and  Y.  defendants,  setting  out  the  facts,  and  claiming  her  in- 
terest in  the  slaves  sold  to  M.  Held:  It  was  not  necessary  that 
N.  and  Y.  should  file  a  cross-bill  in  the  cause  in  order  to  set  up 
their  claims  against  M. 

In  the  case  of  Cralle  vs.  Cralle^  79  Va.,  182,  decided  May  1, 
1884.  Where  husband  in  1874  obtained,  upon  order  of  publi- 
cation against  absent  wife,  a  decree  of  divorce  a  vinculo  matri- 
monii for  wilful  desertion  for  five  years,  and  in  1876  wife  asks 
for  a  rehearing  and  for  alimony,  and  proves  at  rehearing,  by 
plaintiff's  admissions  and  otherwise,  that  the  desertion  was  not 
wilful,  in  fact  not  hers,  but  his.  Held  :  Equity,  regarding  sub- 
stance rather  than  form,  will  treat  her  answer  as  a  cross-bill,  and 
give  her  what  on  the  latter  she  would  be  entitled  to. 

In  the  case  of  Wayland  et  ux.  vs.  Crank's  Executor,  79  Va., 
602,  decided  December  4,  1884,  it  was  held :  Where  answer 
contains  charges,  and  makes  demands  against  complainants, 
which  by  strict  rules  of  pleading  could  only  be  set  up  by  bill  or 
cross-bill,  a  court  of  equity  will  consider  and  treat  such  answer 
as  a  cross-bill,  so  as  to  enable  it  to  do  complete  justice  in  the 
case. 

The  case  of  Adkins  vs.  Edwards  was  reported  in  83  Va.,  316, 
but  does  not  cover  this  section. 

Section  3255. 
In  the  case  of  Fox  et  als.  vs.  Cosby  et  als.,  2  Call,  1,  decided 
October  12,  1799,  it  was  held:  It  is  error  tp  take  judgment 
against  an  infant  defendant  by  default,  who  is  not  stated  on  the 


Citations  to  the  Code  of  Virginia.  689 

xecord  to  have  appeared  by  his  guardian  to  defend  the  suit,  or 
that  the  guardian  appointed  by  the  court  ever  acted,  or  had 
notice  of  such  appointment. 

In  the  case  of  Roberts's  Widow  and  Heirs  vs.  Stanton^  2  Munf., 
129,  decided  May  30,  1810,  it  was  held :  It  is  error  to  enter  a 
decree  against  infant  defendants  without  assigning  them  a  guard- 
ian ad  litem;  and  though  the  infancy  did  not  appear  in  the 
original  proceedings,  yet,  if  it  be  alleged  in  a  petition  for  a  re- 
hearing (the  decree  being  interlocutory),  a  guardian  ad  litem 
ought  to  be  appointed. 

In  the  case  of  Wells's  Heirs  vs.  Winfree  et  als.,  2  Munf.,  342, 
decided  October  8,  1811,  it  was  held :  A  guardian  ad  litem,  ap- 
pointed to  prosecute  an  appeal  on  an  infant's  behalf,  is  not  ob- 
liged to  accept  the  appointment.  A  reasonable  time  ought, 
therefore,  to  be  given  him  to  consider  whether  he  will  accept, 
and  to  prepare  for  trial. 

In  the  case  of  Brown  vs.  McRed's  Executors^  4  Munf.,  439, 
decided  October  13,  1815,  it  was  held:  An  office  judgment 
against  an  infant,  who  in  the  writ  is  named  as  defendant,  "by 
J.  K.,  his  guardian,"  cannot  be  supported,  but  must  be  reversed 
in  toto,  if  there  be  nothing  in  the  record  to  show  that  J.  K.  was 
guardian  by  testament,  or  ex  provisione  legis,  or  guardian  ad 
litem  appointed  by  court. 

In  the  case  of  Beverly  vs.  Miller,  6  Munf.,  99,  decided  Feb- 
ruary 4,  1818,  it  was  held:  If  a  suit  against  an  infant  in  the 
superior  court  of  chancery  be  fully  defended  by  his  guardian 
appointed  by  the  county  court,  whose  answer  is  received  in  his 
behalf  under  the  sanction  and  authority  of  the  superior  court, 
he  must  be  equally  bound  by  such  defence  as  if  such  guardian 
had  been,  in  form,  appointed  guardian  ad  litem;  but  if  the  suit 
abate  as  to  such  guardian  by  his  death  before  the  decree,  a 
guardian  ad  litem  ought  to  be  appointed,  notwithstanding  all 
the  testimony  and  accounts  were  taken  before  his  death. 

In  the  case  of  Cole  vs.  Fennel,  2  Kand.,  174,  decided  De- 
cember 18,  1823.  Where  an  office  judgment  is  obtained  in  an 
action  on  a  promissory  note  against  two  defendants,  one  of 
whom  is  an  infant  at  the  time  of  confessing  the  judgment. 
Held :  On  a  writ  of  error  coram  vohis  being  brought,  the  pro- 
ceedings should  be  set  aside  as  far  as  the  declaration  or  other 
good  pleading.  So  decided  by  two  judges  in  a  court  consisting 
of  three.  The  judgment  in  such  case  ought  to  be  revoked  as 
to  both  defendants,  and  not  as  to  one  only. 

In  the  case  of  Hite  {Executor)  vs.  Hue's  Legatees,  2  Rand.,  409, 
decided  March,  1824,  it  was  held :  It  is  not  competent  to  guard- 
ians of  infant  parties  to  waive  any  benefit  to  which  the  infants 
are  entitled  in  a  decree ;  and  it  is  error  to  decree  on  such  con- 
sent. 

44 


€90  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Jalley  et  als.  vs.  Starke's  Administratrix  et  als.y 
€  Grat.,  339,  decided  October,  1849,  it  was  held :  In  a  suit  in 
equity  by  a  guardian  of  infants  for  the  sale  of  their  real  estate, 
a  guardian  ad  litem  for  the  infants  may  be  appointed  at  rules. 

The  reference  to  1  Bob.,  449,  is  an  error. 

In  the  case  of  Ewing's  AdmAnistrators  et  als.  vs.  Ferguson' s 
Administrator  et  als.,  33  Grat.,  548,  decided  September,  1880,  it 
was  held :  The  heirs  of  E.,  being  infants,  though  their  guardian 
was  a  party  and  answered,  they  were  entitled  to  be  defended 
by  a  guardian  ad  litem,  and  although  one  was  appointed 
for  them,  and  there  was  a  paper  purporting  to  be  an  answer 
found  among  the  papers  of  the  cause,  yet,  as  it  did  not  appear 
that  it  had  been  filed,  it  was  error  to  decree  the  sale  of  the  in- 
fants' land  without  an  answer  filed  by  guardian  ad  litem. 

In  the  case  of  Smith  vs.  Henkel  et  als.,  81  Va.,  524,  decided 
March  11,  1886,  it  was  held:  When  it  appears  of  record  that 
the  infant  defendants  appeared  and  answered  by  their  guardian 
ad  litem,  and  that  there  was  a  general  replication  thereto,  it  will 
be  presumed  here  that  the  answer  was  regularly  filed,  though  the 
answer  itself  is  not  found  among  the  papers  in  the  record. 

Where  infants,  apparently  of  full  age,  buy  land,  give  their 
bonds,  take  a  deed  with  vendor's  lien  retained,  and  fail  to  pay, 
and  suit  is  brought  to  enforce  the  lien  on  the  land,  and  the  pur- 
chasers, then  of  age,  set  up  the  defence  of  infancy  when  their 
bonds  were  signed;  the  suit  not  being  on  their  bonds,  but  to  en- 
force the  lien  in  rem,  the  infancy  is  immaterial. 

In  the  case  of  Hinton  et  als.  vs.  Bland's  Administrator  et  als.., 
81  Va.,  588,  decided  April  8,  1886,  it  was  held :  It  is  only  where 
there  is  no  committee,  or  where  there  is  a  conflict  of  interest 
between  the  committee  and  the  lunatic,  that  it  becomes  neces- 
sary to  appoint  a  guardian  ad  litem  for  the  insane  defendant. 

In  the  case  of  Daingerfield  vs.  Smith,  83  Va.,  81,  decided 
March  31,  1887,  it  was  held:  Infant  defendants  are  not  compe- 
tent to  consent  to  decree  of  sale,  and  their  guardian  ad  litem, 
cannot  consent  for  them. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  588. 

Section  3259. 

In  the  case  of  B.  c&  D.  R.  R.  Co.  vs.  Rudd,  88  Va.,  648,  de- 
cided January  26,  1892.  The  original  summons  stated  damages 
at  fifteen  thousand  dollars ;  copy,  at  one  thousand  five  hundred 
dollars.  Held :  The  variance  could  be  taken  advantage  of  only 
by  plea  in  abatement,  and  at  last  was  waived  by  failure  to  ob- 
ject before  verdict. 

Section  3260. 

In  the  case  of  Hooe  vs.  Marquess,  4  Call,  416,  decided  Octo- 
ber, 1798 :  The  questions,  whether  after  answer  without  a  plea 


Citations  to  the  Code  of  Virginia.  691 

in  abatement  to  the  jurisdiction  of  the  court,  and  whether  the 
court  of  appeals  has  jurisdiction  to  reverse  such  cases,  were  de- 
bated, but  no  decision  rendered. 

In  the  case  of  Pollard  vs.  Patterson's  Administrators,  3  H.  & 
M.,  67,  decided  October,  1808,  it  was  held:  The  true  construc- 
tion of  the  act  reducing  into  one  the  general  acts  of  the  high 
court  of  chancery,  is,  that  if  it  appear  from  the  face  of  the  bill 
that  the  matter  thereof  is  not  proper  for  a  court  of  equity,  it 
should  be  dismissed,  even  "after  answer  filed,  and  no  plea  in 
abatement  to  the  jurisdiction  of  the  court." 

In  the  case  of  Bradley  vs.  Welsh,  1  Munf.,  284,  decided 
April  18,  1810,  it  was  held :  A  plea  in  abatement  ought  not  to 
be  received  to  set  aside  an  office  judgment,  unless  it  be  matter 
which  Sivoaepais  darrein  continuance. 

In  the  case  of  Payne  &  Fairfax  vs.  Grim^  2  Munf.,  297,  de- 
cided May  15,  1811,  it  was  held :  After  issue  joined  on  a  plea  to 
the  action,  it  is  too  late  to  move  the  court  to  dismiss  the  suit 
on  the  ground  of  a  defect  in  the  writ,  or  for  leave  to  file  a  bill 
in  abatement. 

In  the  case  of  Hickman  vs.  Stout.,  2  Leigh,  6,  decided  Feb- 
ruary, 1830,  it  was  held :  Where  a  bill  in  chancery  states  mat- 
ter proper  for  relief  in  equity,  and  defendant,  without  pleading 
to  jurisdiction  in  abatement,  answers  the  bill,  he  is  precluded 
from  taking  exception  to  jurisdiction  afterwards  by  the  statute. 
Allter,  if  bill  on  its  face  show  case  not  properly  reUevable  in 
equity. 

In  the  case  of  Collins  et  als.  vs.  Jones,  6.  Leigh,  530,  decided 
July,  1835.  Bill  for  relief  in  equity  against  a  judgment  at  law, 
on  grounds  which  would  have  been  a  good  defence  at  law,  with- 
out showing  any  reason  why  the  defence  was  not  made  at  law; 
defendants  object  to  the  jurisdiction  in  their  answers;  the  court 
directs  an  issue  to  try  the  facts  on  which  the  relief  is  asked,  and 
a  verdict  is  found  for  the  plaintiff;  and  then  the  court  decrees 
relief.  Held :  The  case  was  not  proper  for  relief  in  equity,  and 
notwithstanding  the  verdict  for  the  plaintiff  on  the  issue,  the 
bill  should  have  been  dismissed. 

In  the  case  of  Middleton  vs.  Pinnel,  2  Grat.,  202,  decided 
July,  1845,  it  was  held:  A  plea  in  abatement  to  the  jurisdiction 
of  the  court,  on  the  ground  that  the  defendant  did  not  reside 
in  the  county  in  which  the  suit  was  brought,  nor  did  the  cause 
of  action  arise  there,  must  state  where  the  defendant  does  re- 
side, and  where  the  cause  of  action  did  arise. 

In  the  case  of  Hudson  vs.  Kline.,  9  Grat.,  379,  decided  Sep- 
tember 3,  1852,  it  was  held :  If  a  bill  does  not  state  a  proper 
case  for  relief  in  equity,  the  court  will  dismiss  it  at  the  hearing, 
^  though  no  objection  has  been  taken  to  the  jurisdiction  by  the 
ft      defendant  in  his  pleading. 


692  Citations  to  the  Code  of  Virginia. 

In  the  case  of  BecMey  vs.  Palmer  et  als.,  11  Grat.,  625,  de- 
cided July,  1854,  it  was  held,  p,  631 :  A  defendant  in  an  execu- 
tion files  a  bill  to  enjoin  the  execution,  on  the  ground  that  a 
previous  execution  sued  out  on  the  same  judgment  had  been 
levied  by  the  sheriff  on  the  property  of  another  defendant  in 
the  execution  sufficient  to  discharge  it.  In  such  case  the  bill 
must  be  filed  in  the  county  in  which  the  judgment  was  re- 
covered; and  the  circuit  court  of  another  county  has  no  juris- 
diction of  the  case.  In  such  case  it  is  not  necessary  that  the 
objection  to  the  jurisdiction  should  be  made  by  demurrer  or 
plea ;  but  it  must  be  taken  at  the  hearing  of  the  cause. 

In  the  case  of  Washington  and  New  Orleans  Telegraph  Co. 
vs.  Hobson  &  Son^  15  Grat.,  122,  decided  April,  1859,  it  was 
held:  In  an  action  against  a  telegraph  company,  the  line  of 
which  extends  through  several  States,  though  it  appears  that 
some  of  the  defendants  live  out  of  the  State,  this  is  not  cause 
for  arresting  the  judgment  against  the  company.  If  it  is  a  good 
ground  for  objection  to  the  jurisdiction  of  the  State  court,  it 
must  be  taken  by  plea  in  abatement  before  the  defendants  plead 
in  bar. 

In  the  case  of  Jones  vs.  Bradshaw,  16  Grat.,  355,  decided 
February  18,  1863,  it  was  held :  The  statute  applies  only  where 
the  objection  to  the  jurisdiction  of  the  court  is  for  mere  matter 
of  abatement,  as  where  the  case  is  a  proper  one  for  a  court  of 
equity,  but  not  for  the  particular  court  in  which  the  suit  is 
brought,  or  where  the  suit  ought  to  be  abated  by  reason  of 
some  circumstances  attending  the  situation  of  the  plaintiff  or 
defendant  or  the  like.  Where  a  bill  alleges  proper  matter  for 
the  jurisdiction  of  a  court  of  equity  (so  that  a  demurrer  will 
not  lie),  if  it  appears  on  the  hearing  that  the  allegations  are 
false,  and  that  such  matter  does  not  in  fact  exist,  the  result 
must  be  the  same  as  if  it  had  not  been  alleged;  and  the  bill 
should  be  dismissed  for  want  of  jurisdiction. 

The  ground  of  equitable  jurisdiction  stated  in  the  bill  being 
the  want  of  a  discovery  from  the  defendant,  and  it  appearing 
fnom  the  evidence  that  as  to  some  material  facts  alleged  the 
plaintiff  had  full  proof,  and  as  to  the  others  they  were  merely 
pretences,  the  bill  wiU  be  dismissed  at  the  hearing  for  want  of 
jurisdiction. 

In  the  case  of  Green  (&  Shuttle  vs.  Massie,  21  Grat.,  356,  de- 
cided August,  1871,  it  was  held :  If  at  the  hearing  of  a  cause 
the  case  upon  the  pleadings  and  proofs  is  one  of  which  a  court 
of  equity  has  no  jurisdiction,  the  bill  should  be  dismissed, 
though  the  defendant  has  made  no  objection  to  the  jurisdiction 
either  by  demurrer,  plea  or  answer,  but  has  defended  himself 
on  the  merits ;  and  in  such  a  case  an  appellate  court  will 
reverse  a  decree  in  favor  of  the  plaintiff,  and  dismiss  the  bill. 


Citations  to  the  Code  of  Virginia.  693 

though  no  objection  to  the  jurisdiction  was  taken  in  the  court 
below. 

In  the  case  of  Warren  vs.  Saunders,  27  Grat.,  259,  decided  March 
9,  1876.  W.  sues  S.  in  assumpsit  in  the  county  of  J.,  and  sends 
the  process  to  the  city  of  E,.  where  S.  resides,  and  it  is  served 
upon  S.  by  the  sheriff  of  R.  S.  files  a  plea  in  abatement  stating 
these  facts,  but  does  not  say  where  the  cause  of  action  arose. 
Held :  The  plea  is  sufficient  in  this  case,  though  it  does  not  give 
the  plaintiff  a  better  writ. 

In  the  case  of  Mosby  and  Wife  vs.  Withers' s  Executors  et  als., 
80  Va.,  82,  decided  January  15,  1885,  it  was  held:  Where  in  a 
suit  in  eqidty  proof  is  presented  of  another  suit  in  equity  pend- 
ing in  same  court  between  same  parties,  concerning  same  subject, 
it  is  not  error  to  reject  the  plea,  consolidate  the  causes,  and 
proceed  in  them  as  in  one  cause. 

In  the  case  of  Salamone  vs.  Keiley  et  als.,  80  Va.,  86,  decided 
January  15,  1885,  it  was  held:  Where  a  bill  fails  to  state  a  case 
proper  for  relief  in  equity,  the  court  will  dismiss  it  at  the  hear- 
ing, though  no  objection  has  been  made  in  the  pleadings ;  but  a 
■defective  bill  may  be  aided  by  the  answer  and  the  evidence. 

In  the  case  of  Wells  et  als.  vs.  Hughes  s  Executor,  89  Va.,  543, 
decided  January  12,  1893,  it  was  held :  Where  a  bill  shows  on 
its  face  matter  proper  for,  and  the  parties  are  within,  the  juris- 
diction of  the  court,  exception  for  want  of  jurisdiction  can  only 
be  taken  by  plea  in  abatement. 

Section  3261. 
In  the  case  of  Pruntyy^.  Michell  <&  Cohhs,  76  Va.,  169. 

1.  Non-Joinder. — Defendants. — If  one  of  several  joint  con- 
tractors be  omitted  as  defendant,  advantage  of  the  omission  can 
be  taken  only  by  plea  in  abatement. 

2.  Idem. — Plaintiffs. — If  omitted  as  plaintiff,  and  the  omission 
appear  on  the  pleadings,  advantage  thereof  may  be  taken  by 
demurrer,  motion  in  arrest  of  judgment,  or  writ  of  error. 

3.  Idem. — Idem. — But  if  the  omission  be  disclosed  only  by 
the  evidence,  the  plaintiff  will  be  non-suited. 

Section  3262. 

In  the  case  of  Warasley  vs.  Lindenb&rger  c&  Co.,  2  Rand.,  478, 
decided  May  17,  1824,  it  was  held :  A  promissory  note  is  exe- 
cuted by  one  of  two  partners,  in  the  name  of  the  firm,  one  of 
the  partners  was  an  infant  at  the  time  of  the  execution  of  the 
note.  An  action  is  brought  against  the  adult  partner  only.  The 
action  is  badly  brought ;  the  act  of  the  infant  being  voidable 
•only  and  not  void. 

In  the  case  of  Strange  vs.  floyd,  9  Grat.,  474,  decided  Octo- 
ber 25,  1852,  it  was  held :  All  the  obligees  in  a  joint  bond  must 


694  Citations  to  the  Code  of  Vikginia. 

join  in  an  action  thereon,  or  some  sufficient  excuse  for  not  join- 
ing them  must  be  stated  in  the  declaration,  or  the  objection  is 
fatal  on  general  demurrer.  In  an  action  on  a  bond  to  more 
than  one  obKgee,  non-payment  of  the  debt  to  all  of  the  obligees 
must  be  averred  in  substance  in  the  declaration,  or  the  objec- 
tion will  be  fatal  on  general  demurrer. 

SEcnoN  3264. 

In  the  case  of  Stone  vs.  Patterson,  6  Call,  71,  decided  April, 
1806,  it  was  held :  The  plaintiff  may  under  the  act  of  Assembly 
plead  and  demur  to  the  whole  declaration. 

In  the  case  of  Syme  vs.  Grijfin,  4  H.  &  M.,  277,  decided  No- 
vember, 1809,  it  was  held :  It  is  settled  under  our  act  of  As- 
sembly that  a  plea  and  demurrer  at  the  same  time  to  the  whole 
declaration  are  admissible. 

In  the  case  of  Waller's  Executor  vs.  Ellis  et  als.,  2  Munf.,  88, 
decided  October,  1809,  it  was  held:  Under  the  act  of  1792,  the 
plaintiff  in  replevin,  and  the  defendant  in  all  other  actions,  may 
plead  as  many  several  matters,  whether  of  law  or  fact,  as  he 
shall  think  necessary  for  his  defence,  notwithstanding  such  sev- 
eral matters  be  inconsistent  with  each  other. 

If  a  defendant  plead  and  demur  to  the  whole  declaration,  and 
the  demurrer  be  overruled,  judgment  ought  not  to  be  entered 
without  first  trying  the  issues  joined  on  the  other  pleas. 

In  the  case  of  Lang  vs.  Lewis's  Administrator,  the  same  against 
the  same,  1  Eand.,  277,  decided  January,  1823,  it  was  held:  It 
is  error  for  a  plaintiff  to  reply  and  demur  to  the  same  plea. 

In  the  case  of  Reed\s.  Hanna's  Executor,  3  Eand.,  56,  decided 
November,  1824,  it  was  held:  Where  the  objection  to  a  second 
plea  filed  under  the  act  of  Assembly  is  that  the  matter  of  that 
plea  is  already  put  in  issue,  the  party  ought  not  to  be  put  to 
the  hazard  of  a  demurrer  in  order  to  avail  himself  of  that 
objection;  the  proper  and  safe  practice  being  to  try  that  ques- 
tion on  a  motion  to  reject  the  plea  or  strike  it  out,  if  it  has  been 
entered  on  record.  So  decided  by  two  judges  in  a  court  consist- 
ing of  three. 

In  the  case  of  Yaiden  vs.  Bell,  3  Kand.,  448,  decided  October, 
1825,  it  was  held :  A  special  demurrer  and  plea  are  filed  to  the 
same  declaration ;  afterwards  the  joinder  in  demurrer  is  with- 
drawn, and  the  declaration  is  amended  in  the  point  specified  in 
the  demurrer,  and  issues  are  joined  on  the  same  pleas.  No 
further  notice  is  taken  of  the  demurrer,  and  a  verdict  is  ren- 
dered on  the  issues. 

The  demurrer  to  the  first  declaration  must  be  considered  as 
abandoned,  and  the  pleas  to  the  first  declaration  as  insisted  on 
by  the  defendant  as  pleas  to  the  second. 

The  reference  to  4  Leigh,  402,  is  an  error. 


Citations  to  the  Code  op  Virginia.  695 

In  the  case  of  Maggort  vs.  Hansbarger,  8  Leigh,  532,  decided 
July,  1837.  A  special  plea  is  oflfered  and  the  plaintiff  objects 
to  its  being  filed,  but  the  ground  of  his  objection  does  not  ap- 
pear. The  record  only  shows  that  the  special  plea  was  filed  a 
year  after  the  general  issue  had  been  pleaded.  An  appellate 
court  cannot  say  that  the  plea  was  improperly  received.  A  de- 
fendant is  not  inhibited  from  pleading  specially  what  he  might 
give  under  the  general  issue,  unless  the  matter  pleaded  amounts 
to  the  general  issue,  that  is  to  say,  denies  the  allegations  which 
the  defendant  is  bound  to  prove.  Where  the  cause  of  action  is 
avoided  by  matter  ex  post  facto,  such  matter  may  always  be 
specially  pleaded,  whether  it  could  be  given  in  evidence  under 
the  general  issue  or  not. 

Where  a  plea  in  bar  is  to  the  whole  declaration,  and  upon  a 
demurrer  the  court  is  of  opinion  that  the  plea  is  sufficient, 
unless  the  plaintiff  move  for  leave  to  withdraw  his  demurrer  and 
reply, the  demurrer  will  be  overruled,  and  final  judgment  entered 
for  the  defendant. 

In  the  case  of  James  River  d&  Kanawha  Compnny,  16  Grat., 
434,  decided  January  26,  1864,  it  was  held,  pp.  439-'40 :  A  plea 
in  abatement  is  admissible  in  an  action  of  ejectment.  The  act 
refers  only  to  pleas  in  bar  of  the  action.  Qucere :  If  a  defendant 
may  not  plead  in  abatement  and  in  bar  at  the  same  time,  the 
pleas  being  filed  at  the  proper  time  ?  A  defendant  may  waive 
his  plea  in  abatement  and  plead  in  bar  to  the  action.  A  de- 
fendant in  ejectment,  admitting  that  he  was  mistaken  as  to  the 
matter  pleaded  in  abatement,  and  upon  this  admission  submit- 
ting the  issue  to  the  plea  to  the  court,  at  the  same  time  asking 
leave  to  file  the  plea  of  "not  guilty,"  this  was  in  effect  a 
waiver  of  the  plea  in  abatement,  and  he  should  have  been  per- 
mitted to  file  the  plea  of  "not  guilty." 

In  the  case  of  Allen  et  als.  vs.  Hart,  18  Grat.,  722,  decided 
April,  1868,  it  was  held,  p.  729 :  The  defence  of  set-off  is  admis- 
sible in  a  motion  upon  a  forthcoming  bond  taken  on  a  warrant 
of  distress. 

In  the  case  of  O'Bannon  vs.  Sau7iders,  24  Grat.,  138,  decided 
November,  1873,  it  was  held,  p.  147 :  If  defendant  pleads  sev- 
eral distinct  matters  of  defence  in  one  plea,  the  plaintiff  may 
reply  generally  to  it,  the  defendant  being  guilty  of  the  first 
fault. 

In  the  case  of  Virginia  Fire  and  Marine  Insurance  Company^ 
V8.  Buck  <&  NeiDson,  88  Va.,  517,  decided  December  14,  1891, 
it  was  held:  Under  the  pleas  of  non  assumpsit  and  nil  debet, 
any  matter  of  defence  whatever  is  admitted  which  tends  to  deny 
defendant's  liability  to  the  plaintiff's  demands,  except  the  statute 
of  limitations,  bankruptcy,  and  tender,  which  do  not  contest  the 
owing  of  the  debt,  but  merely  that  an  action  can  be  maintained 


696  Citations  to  the  Code  of  Vieginia. 

for  it;  and  notwithstanding  this  section  allows  defendant  to 
plead  as  many  matters  of  defence  as  he  chooses,  yet  it  does  not 
■give  him  the  absolute  right  to  his  special  pleas,  setting  up  de- 
fences admissible  under  pleas  already  received ;  and  the  court 
may  strike  out  such  special  pleas  though  already  admitted  and 
issue  joined. 

Section  3266. 
In  the  case  of  Phillips  vs.  The  Com^monwealth,  19  Grat.,  485, 
decided  November  4, 1868,  it  was  held,  p.  510 :  Though  the  plea 
tendered  by  the  prisoner  was  informal  and  properly  rejected  by 
the  court,  yet  the  objection  to  the  jurisdiction,  being  a  mere 
question  of  law,  however  made,  whether  by  suggestion  or  motion 
ore  tenus,  should  be  considered  and  decided  by  the  court. 

Section  3267. 

In  the  case  of  Virginia  Fire  and  Marine  Insurance  Company 
vs.  Saunders^  84  Va.,  210,  decided  December  8,  1887,  it  was 
held:  It  is  the  well-established  rule  of  pleading,  that  w^here 
new  matter  is  introduced  the  pleading  shall  conclude  with 
a  verification.  This  rule  applies  as  well  to  the  plaintiff's  re- 
plication as  to  any  other  pleading,  and  the  first  clause  of  this 
section,  providing  that  special  traverses,  or  traverses  with  an 
inducement  of  new  matters,  shall  conclude  to  the  country,  does 
affect  this  rule. 

Section  3268. 

In  the  case  of  Nadenhousch  vs.  McRea,  1  Ya.  (Gilmer),  228, 
decided  April  3,  1821,  it  was  held:  General  replication  to  the 
plea  of  payment  does  not  of  itself  constitute  an  issue.  Appear- 
ance bail  becoming  special  bail  should  be  allowed  to  prove 
the  similiter  to  a  replication  added  by  the  clerk  without  his 
consent,  and  in  such  case  the  bail  should  be  allowed  to  rejoin, 
demur,  etc. 

In  the  case  of  Southside  R.  R.  Co.  vs.  Daniel,  20  Grat.,  344, 
decided  March,  1871,  it  was  held :  In  an  action  on  the  case  for 
damages  to  plaintiff's  land  there  is  the  plea  of  not  guilty,  on 
which  issue  is  joined,  and  there  is  a  special  plea,  to  which  there 
is  a  special  replication  concluding  to  the  country.  To  this  there 
is  no  rejoinder,  and  the  record  does  not  say  that  issue  was 
joined  upon  it ;  but  the  parties  go  to  trial  and  the  subjects  of 
the  special  plea  and  replication  are  contested  before  the  jury, 
which  renders  a  verdict  for  the  plaintiff.  No  objection  having 
been  taken  to  the  want  of  joinder  of  issue  in  the  court  below,  it 
seems  that  the  objection  cannot  be  taken  in  the  appellate  court. 

In  such  a  case,  if  the  subject  of  the  replication  is  such  that 
the  defendant  cannot  rejoin  special  matter  without  a  departure 
from  the  defence  set  up  in  the  plea,  but  must  take  issue  upon  the 
repUcation,  the  non-joinder  of  issue  will  be  cured  by  the  statute. 


Citations  to  the  Code  of  Virginia.  697 

Section  3271. 

In  the  case  of  Jones's  Executor  vs.  Clarke  et  als.,  25  Grat., 
642,  decided  January  7,  1875,  it  was  held,  p.  675 :  A  demurrer 
to  a  bill  in  equity  in  the  form  given  in  the  statute  is  sufficient. 

In  the  case  of  Dunn  vs.  Dunn,  26  Grat.,  291,  296,  decided 
June  23,  1875.  J.  was  a  partner  in  a  mercantile  business  with 
W.  and  A.  That  partnership  was  dissolved,  and  J.  and  A. 
formed  a  partnership  to  carry  on  the  same  business  at  the  same 
place,  and  this  partnership  was  dissolved ;  afterwards  J.  filed 
his  bill  against  W.  and  A.,  charging  that  both  partners  are  in- 
debted to  him,  and  asking  for  a  settlement  of  their  accounts. 
W.  demurs  and  answers,  the  demurrer  being  contained  in  the 
answer  and  not  stating  the  grounds  of  demurrer.  Held :  The 
bill  is  multifarious.     The  demurrer  is  sufficient  in  form. 

In  the  case  of  Matthews  vs.  Jenkins,  80  Va.,  463,  decided  April 
16,  1885,  it  was  held :  It  is  settled  in  this  State  that  a  demurrer 
in  the  form  prescribed  by  the  statute,  and  assigning  no  grounds, 
inserted  in  the  answer  is  sufficient ;  and  when  the  court  has 
adjudicated  the  principles  of  the  cause  in  favor  of  the  plaintiff 
the  presumption  is  that  it  overruled  the  demurrer,  though  the 
record  does  not  show  what  was  done  with  it. 

Section  3272. 

In  the  case  of  Mantz  vs.  Hundley,  2  H.  &  M.,  308,  decided 
April  16,  1808,  it  was  held :  A  general  demurrer  to  a  plea  in 
abatement  ought  to  be  sustained  though  the  plea  be  defective 
in  form  only. 

In  the  case  of  Miller  vs.  McLiier,  1  Va.  (Gilmer),  338,  decided 
October  20, 1820,  it  was  held :  Assigning  special  pleas  for  a  de- 
murrer does  not  make  a  demurrer  special  which  is  in  its 
nature  general.  Not  adding  the  joinder  in  demurrer  is  not  an 
available  error  in  an  appellate  court,  after  argument  and  a  de- 
cision on  the  demurrer  in  the  court  below. 

In  the  case  of  Hoane's  Administrators  vs.  Drummond^s  Ad- 
ministrators, 6  Kand.,  182,  decided  March,  1828,  it  was  held : 
Where  pleadings  terminate  in  a  demurrer  on  either  side,  any 
error  in  the  previous  pleadings  on  either  side  may  be  taken 
advantage  of. 

In  an  action  of  debt  on  a  judgment  for  a  certain  sum  to  be 
discharged  by  the  payment  of  a  lesser,  if  the  declaration  de- 
mands a  wrong  sum,  and  no  special  demurrer  is  filed,  the  error 
is  cured  by  the  statute  of  jeofails,  there  being  enough  in  the 
declaration  to  show  the  true  amount  of  the  judgment. 

In  the  case  of  Mowry  vs.  Miller,  3  Leigh,  561,  decided  March, 
1832,  it  was  held:  On  general  demurrer  to  a  declaration  the 
court  looks  always  to  the  substantial  meaning  of  its  allegations 
to  ascertain  whether  it  states  good  cause  of  action. 


698  Citations  to  the  Code  of  Virginia. 

In  'the  case  of  Carthrae  vs.  Clarke,  5  Leigh,  268,  decided 
April,  1834,  it  was  held :  Though  there  be  no  formal  affirmative 
and  negative  in  pleading,  yet  whenever  a  replication  disaffirms 
the  whole  substance  of  the  plea  it  may  regularly  conclude  to  the 
country. 

If  a  replication  which  ought  to  conclude  with  a  verification 
concludes  to  the  country,  and  the  replication  be  substantially  a 
good  answer  to  the  plea,  and  there  be  a  general  demurrer  to  the 
replication,  the  irregularity  of  the  conclusion  is  cured  by  the 
statute  oi  jeofails. 

In  the  case  of  Horton  <&  Hutton  vs.  W.  and  E.  Towers,  6 
Leigh,  47,  decided  February,  1835,  it  was  held:  The  utmost 
strictness  is  required  in  pleas  and  abatements,  and  a  general 
demurrer  to  such  plea  has  all  the  effect  of  a  special  one. 

Plea  in  abatement  to  jurisdiction  held  naught:  1,  Because 
pleaded  by  attorney,  not  in  person;  2,  Because  concluded  with 
a  prayer  quod  hilla  cassetur,  instead  of  si  curia  cognoscere  velit ; 
and  3,  Because  it  did  not  give  plaintiffs  a  better  writ. 

In  the  case  of  Bennett's  Executor  vs.  Giles  {Governor),  at  the 
relation  of  Loyd,  6  Leigh,  316,  decided  April,  1835.  In  debt  on 
sheriff's  official  bond  in  name  of  G.,  successor  of  T.,  governor  of 
Virginia,  to  whom  the  bond  was  given,  plea  that  G.  was  not, 
and  that  M.  was,  the  successor  of  T.,  and  demurrer  to  the  plea. 
Held:  Though  the  plea  was  obviously  designed  to  entrap,  the 
demurrer  must  be  sustained. 

Upon  a  demurrer  taken  by  a  plaintiff  to  a  plea,  the  court 
goes  back  to  the  first  fault,  and  if  plaintiff's  declaration  is  de- 
fective gives  judgment  for  defendant  on  demurrer,  nor  is  the 
defect  cured  by  the  defendant  pleading  over. 

In  the  case  of  SheltovUs  Executors  vs.  WelsKs  Administrator,  7 
Leigh,  175,  decided  Febniary,  1836.  In  a, debt  on  a  decree  for 
money  which  does  not  give  running  interest  thereon,  the  decla- 
ration demands  the  interest  from  the  date  of  the  decree,  as  part 
of  the  debt.  Held:  Declaration  bad  on  general  demurrer  for 
demanding  interest  as  part  of  the  debt. 

When  a  declaration  is  defective  and  the  judgment  upon  it  is 
therefore  reversed,  and  yet  the  declaration  shows  a  just  demand 
if  properly  asserted,  plaintiff  shall  not  turn  out  of  court,  but  the 
cause  shall  be  remanded  for  further  and  correct  proceedings. 

In  the  case  of  Baily  et  als.  vs.  Beckwith  {Executor),  7  Leigh, 
604,  decided  July,  1836,  it  was  held  :  Upon  an  obligation  to  A, 
by  the  name  of  executor  of  B.,  the  action  should  be  brought 
by  A.  in  his  individual  character,  and  he  ought  regularly  to  de- 
clare in  the  debit  and  detinet ;  but  though  the  declaration  be  in 
the  detinet  only,  it  will  not  be  held  bad  for  this  cause.  The 
allegation  of  the  debit  is  such  mere  matter  of  form  that  the 
omission  will  be  disregarded  even  on  special  demurrer. 


Citations  to  the  Code  of  Virginia.  699 

In  the  case  of  Creel  vs.  Brown,  1  Bob.,  265  (2d  edition,  281). 
Where  one  of  the  counts  in  a  dechiration  is  in  case  for  a  tort, 
and  another  in  assumpsit,  a  general  demurrer  to  the  declaration 
for  such  misjoinder  ought  to  be  sustained.  There  being  a  de- 
murrer to  a  declaration,  and  an  issue  in  fact,  a  verdict  is  found 
for  the  plaintiff,  and  it  does  not  appear  that  any  judgment  was 
given  on  the  demurrer  otherwise  than  by  implication,  from  the 
fact  that  final  judgment  was  given  for  the  plaintiff  after  the  ver- 
dict. The  court  of  appeals  is  of  opinion  that  the  demurrer  ought 
to  have  been  sustained.  Held :  The  judgment  must  be  reversed, 
the  verdict  set  aside,  and  the  cause  remanded  to  the  circuit 
court,  that  it  may  proceed  to  judgment  on  the  demurrer,  unless 
the  plaintiff  shall,  on  leave  obtained  in  that  court,  amend  his 
declaration ;  and  if  the  declaration  be  amended,  for  such  further 
proceedings  as  may  in  that  case  be  proper. 

In  the  case  of  Henderson  vs.  Stringer,  6  Grat.,  130,  decided 
July,  1849.  A  demurrer  to  an  entire  declaration,  whether  gen- 
eral or  special,  raises  the  question  whether  there  be,  or  be  not, 
matter  in  the  declaration  sufficient  to  maintain  the  action.  If 
there  be  several  counts,  and  one  good,  that  is  sufficient  to  main- 
tain the  action,  and  the  demurrer  must  be  overruled.  If  there 
be  a  single  count  containing  several  breaches,  any  one  of  which 
is  well  assigned,  that  is  sufficient  to  maintain  the  action.  If 
there  be  a  single  count  containing  a  demand  of  several  matters 
which  in  their  nature  are  divisible,  any  one  of  which  is  well 
claimed,  that  is  sufficient.  Whether  the  objection  be  that  one 
of  several  counts  or  that  one  of  several  breaches,  or  that  part 
of  plaintiffs  demand  which  is  of  distinct  and  divisible  nature, 
is  bad,  the  demurrer  should  be  to  that  count  or  to  that  breach, 
or  to  that  part  of  the  demand,  as  the  case  may  be,  which  is  bad. 
A  demurrer  to  a  declaration  with  a  statement,  as  special  cause 
of  demurrer,  that  one  of  the  counts  or  breaches,  or  parts  of  the 
plaintiffs  demand  of  a  distinct  or  divisible  nature,  is  bad,  does 
not  alter  the  character  of  the  demurrer.  And  if  there  be  mat- 
ter enough  in  the  declaration  to  maintain  the  action  the  de- 
murrer must  be  overruled.  Upon  a  demurrer  to  a  declaration 
for  a  misjoinder  of  actions,  the  objection,  if  well  founded,  goes 
to  the  whole  declaration. 

A  declaration  in  debt  contains  but  one  count,  and  claims  the 
sum  of  five  hundred  and  sixty-nine  dollars,  made  up  of  the 
aggregate  amount  averred  to  be  due  by  two  single  bills ;  by  the 
first  of  which  the  defendant  bound  himself,  as  it  is  alleged,  to 
pay  the  plaintiff  one  hundred  dollars  cash  and  eighty-five  dol- 
lars in  good  cash  notes ;  and  by  the  second  he  bound  himself  to 
pay  to  the  plaintiff  three  hundred  and  eighty-five  dollars.  The 
breach  laid  is  that  the  defendant  has  not  paid  the  several  par- 
cels of  the  said  sum  of  five  hundred  and  sixty-nine  dollars,  or 


700  Citations  to  the  Code  of  Virginia. 

any  or  either  of  them  or  any  part  thereof,  in  money  or  good 
cash  notes.  The  defendant  demurred  to  the  declaration,  and 
stated  four  special  grounds  of  demurrer.  Held :  The  demurrer 
cannot  be  sustained. 

The  declaration  counts  on  a  bond  by  which  defendant  bound 
himself  to  pay.  The  bond  offered  in  evidence  is  dated  Septem- 
ber 2,  1837,  and  says,  "  For  value  received  1st  of  March  next, 
I  bind  my  heirs,  etc.,  to  pay."  Held :  That  from  the  face  of 
the  paper  it  is  to  be  inferred  the  obligor  intended  to  bind  him- 
self. There  was,  therefore,  no  variance  in  that  respect.  That 
it  was  sufficient  to  set  out  the  bond  according  to  its  legal  effect ; 
and  as  this  suit  was  against  the  obligor  only,  it  was  only  neces- 
sary so  to  describe  it  as  to  show  that  he  was  bound.  There 
was,  therefore,  no  variance  in  this  respect. 

In  the  case  of  Roach  vs.  Gardiner,  9  Grat.,  89,  decided  July 
26,  1852,  it  was  held :  In  an  action  at  law  the  defendant  demurs 
to  the  declaration  and  afterwards  agrees  to  the  facts,  and  that  the 
court  shall  render  a  judgment  upon  the  case  agreed,  which  is 
done.     He  thereby  waives  his  demurrer  to  the  declaration. 

In  the  case  of  Cunningham  vs.  Smith  et  als.,  10  Grat.,  255,  de- 
cided July,  1853,  it  was  held :  Duplicity  in  a  plea  can  only  be 
objected  to  by  a  special  demurrer. 

Section  3273. 

In  the  case  of  Sutton  vs.  Gatewood  and  Wife^  6  Munf.,  398, 
decided  October  14,  1819,  it  was  held :  When  a  demurrer  to  a 
bill  in  chancery  is  overruled,  a  decree  ought  not  to  be  pro- 
nounced against  the  defendant,  but  leave  should  be  given  him 
to  file  an  answer. 

A  demurrer  to  a  bill  in  chancery  against  a  guardian  for  ad- 
vances of  money,  etc.,  by  the  plaintiff  for  the  use  of  the  ward, 
ought  not  to  be  sustained  on  the  ground  that  the  ward  ought  to 
have  been  a  party ;  but  if,  upon  the  answer  of  the  guardian,  it 
should  appear  proper,  the  court  should  then  direct  the  ward  to 
be  made  a  party. 

In  the  case  of  Northwestern  Bank  vs.  Nelson,  1  Grat.,  108, 
decided  September  1844,  it  was  held :  Defendant's  demurrer  to 
a  bill  being  overruled,  he  is  at  liberty  to  file  any  sufficient  an- 
swer; and  an  answer  to  a  bill  of  discovery  is  sufficient  when  it 
shows  that  defendant  is  protected  from  making  the  discovery 
sought  for  by  the  bill. 

Section  3274. 

In  the  case  of  Pryor  vs.  Adams,  X  Call,  382  (2d  edition,  332), 
decided  October  25,  1798,  it  was  held :  The  court  of  chancery 
should  judge  on  the  proofs  before  it,  and  in  a  clear  case  decree 
thereon  without  directing  an  issue. 


Citations  to  the  Code  of' Virginia.  701 

Section  3275. 

In  the  case  of  Bowles  vs.  ^Vood8orl,  6  Grat.,  78,  decided  April, 
1849,  it  was  held :  A  defendant,  though  in  default  for  want  of  an 
answer,  ought  to  be  permitted  to  file  any  proper  answer  at  any 
time  before  a  final  decree ;  but  the  trial  of  the  cause  is  not  to  be 
subsequently  delayed,  unless  for  good  cause  shown. 

In  the  case  of  Reynolds  vs.  The  Bank  of  Virginia  et  als.,  6 
Grat.,  174,  July,  1849,  it  was  held:  A  defendant  in  equity  who 
is  in  default  files  a  demurrer  to  the  bill,  which  is  overruled. 
He  is  not  entitled  to  two  months  in  which  to  file  an  answer. 

In  the  case  of  Bean  et  als.  vs.  Simmons,  9  Grat.,  389,  decided 
September  3,  1852,  it  was  held :  It  is  the  right  of  a  defendant 
in  equity  to  file  his  answer  at  any  time  before  a  final  decree  is 
made  in  a  cause  where  the  court  had  received  the  case  when 
submitted  for  decision,  had  examined  the  papers  and  settled  the 
terms  of  a  decree  deciding  the  principles  of  the  cause,  though 
it  was  an  interlocutory  decree,  and  a  decree  had  been  prepared 
and  considered  by  the  court  and  directed  to  be  entered  in  the 
order-book,  but  before  it  had  been  entered,  and  on  the  same  day 
it  was  directed  to  be  entered,  a  defendant  tendered  his  answer. 
Held :  The  defendant  was  then  entitled  to  file  his  answer. 

In  the  case  of  Brent  vs.  Mashingtois  Administrator ,  18  Grat., 
526,  decided  April,  1868,  it  was  held :  A  defendant  being  in  de- 
fault for  want  of  an  answer,  comes  in  and  demurs  to  the  bill, 
and  upon  the  hearing  upon  the  demurrer  the  court  overrules  it, 
and  proceeds  to  decree  upon  the  case.  The  only  question  in  the 
cause  being  upon  the  construction  of  a  will,  and  the  defendant 
not  having  asked  leave  to  file  an  answer,  the  appellate  court 
will  not  for  this  cause  reverse  a  decree  which  is  correct  upon  the 
merits. 

In  the  case  of  Elder's  Executors  et  als.  vs.  Harris  et  als.,  76 
Va.,  187,  191-'92. 

Fraudulent  Deed. — Suit  to  Set  Aside. — Case  at  Bar. 

3.  Bill  filed  by  a  creditor  in  1874  to  set  aside,  as  fraudulent, 
deed  made  by  J.  before  he  became*  a  bankrupt  (if  ever  he  was 
one),  and  W.  was  taken  for  confessed  as  to  grantor,  but  answered 
by  grantee,  who  denied  the  fraud,  but  made  no  reference  to 
bankruptcy  of  J.,  or  to  his  assignee.  After  long  litigation  the 
fraud  has  been  estabHshed,  and  plaintiff's  rights  fixed  by  this 
court,  and  the  land,  one  subject  of  controversy,  sold,  and  sale 
confirmed,  and  the  value  of  personalty  (the  other  subject)  has 
been  ascertained  by  a  commissioner,  and  the  cause  awaits  the 
action  of  the  court  on  exceptions  to  his  report.  Held :  After 
this  it  is  too  late  to  allow  the  alienee  to  file  a  supplemental 
answer  and  set  up  a  new  defence,  the  effect  of  which,  if  valid 
and  sustained,  would  be  to  turn  plaintiffs  out  of  court. 

In  the  case  of  Welsh  vs.  Sollenhei'ger,  85  Va.,  441,  decided 


702  Citations  to  the  Code  op  Virginia. 

November  8,  1888,  it  was  held :  A  decree  annulling  a  convey- 
ance for  fraud,  and  directing  commissioner  to  ascertain  the  loca- 
tion and  value  of  the  lands  and  the  liens  thereon,  is  not  a  final 
decree  in  the  sense  that  an  answer  may  not  be  filed  thereafter. 

Section  3276. 

In  the  case  of  Clarke  vs.  Tinsleys  Administrator,  4  Rand., 
250,  decided  May,  1826,  it  was  held :  When  exceptions  are  filed 
to  an  answer,  they  must  be  disposed  of  before  any  further  pro- 
ceedings can  take  place  in  the  cause. 

In  the  case  of  Coleman  vs.  Lyne's  Executor,  4  Rand.,  454,  de- 
cided October,  1826,  it  was  held :  "Where  the  answer  of  the  de- 
fendant in  chancery  omits  to  notice  some  of  the  allegations  of 
the  bill,  and  replies  to  others,  the  allegations  not  noticed  are  not 
considered  as  admitted,  but  the  plaintiff  must  except  to  the 
answer  as  insufficient. 

An  answer  cannot  be  excepted  to  as  insufficient  after  replica- 
tion. 

In  the  case  of  Craig  vs.  Sehrell,  9  Grat.,  131,  decided  August 
2,  1852,  it  was  held :  The  mode  in  which  an  exception  to  an 
answer  shall  point  out  the  omission  excepted  to  is  a  matter  of 
practice  discretionary  with  the  court,  and  not  a  subject  of 
appeal. 

But  if  otherwise,  the  exception  being  sustained  and  the  de- 
fendant having  filed  another  answer,  then  the  subject  of  the  ex- 
ception properly  ended. 

Section  3277. 
In  the  case  of  Ogden  et  ah.  vs.  Brown  et  als.,  83  Va.,  670,  de- 
cided September,  1887,  it  was  held:  Where  decree  of  sale  to 
satisfy  lien  for  purchase-money  is  entered  as  by  confession,  and 
on  same  day  purchaser  answers,  setting  up  that  in  a  suit  in  the 
same  court  a  controversy  is  pending  as  to  the  ownership  of  said 
money,  this  is  good  cause  to  amend  or  suspend  the  decree 
until  the  question  of  ownership  is  settled. 

Section  3278. 

In  the  case  of  Commonwealth  vs.  Sayers,  8  Leigh,  722,  de- 
cided by  the  General  Court,  June,  1837,  it  was  held :  Pleas  in 
abatement  offered  in  prosecutions  for  misdemeanor  ought  to  be 
verified  by  oath  or  affirmation. 

In  the  case  of  Jackson  vs.  Webster,  6  Munf.,  462,  decided  Jan- 
uary 15,  1820,  it  was  held :  A  plea  of  non  est  factum  ought  in 
general  to  be  received  by  the  court,  notwithstanding  the  defend- 
ant has  previously  pleaded  payment,  especially  if  it  be  offered 
under  circumstances  showing  it  is  not  intended  for  the  purpose 
of  delay. 

The  affidavit  to  the  plea  on  non  est  factum  is  not  rendered  de- 


Citations  to  the  Code  op  Virginia.  703 

fective  by  inserting  the  words  "  to  the  best  of  the  defendant's 
knowledge  and  belief."  No  man  can  be  required  to  swear  posi- 
tively (if  at  all)  to  legal  references. 

In  the  case  of  Franklin  vs.  Cox,  4  Eand.,  448,  decided  August 
1826,  it  was  held  :  The  plea  of  noyi.  est  factum  is  a  plea  to  the 
merits,  and  ought  to  be  received  after  an  issue  made  up  on  the 
plea  of  payment,  upon  the  delay  in  filing  it  being  sufficiently 
accounted  for. 

In  the  case  of  Cleaton  vs.  Chamhliss,  6  Rand.,  86,  decided 
November,  1827,  it  was  held:  The  plea  of  non  est  factum, 
whether  general  or  special,  must  conclude  to  the  country,  and  in 
such  a  case,  the  plaintiff  cannot  reply  any  new  matter.  He  must 
either  accept  it  by  similiter  or  demur. 

In  the  case  of  Hicks  et  als.  vs.  Goode,  12  Leigh,  479,  decided 
January,  1842.  In  a  debt  on  a  bond  defendant  pleads  that  the 
bond  was  delivered  as  escrow,  upon  conditions  which  were  not 
performed,  et  sic  non  est  factum  ;  the  plea  is  not  verified  by  af- 
fidavit of  the  party,  according  to  statute,  but  plaintiff  makes  no 
objection  for  want  of  such  affidavit,  and  the  plea  is  received  by 
the  court;  issue  is  joined  upon  it;  trial;  verdict  and  judgment 
for  defendant.  Held :  The  want  of  the  affidavit  to  the  plea  is 
not  a  good  objection  to  the  judgment  in  an  appellate  court. 

In  the  case  of  Ward  et  als.  v.  Chum,  18  Grat.,  801,  decided 
June,  1868.  A  bond  is  drawn,  with  the  names  of  the  principal 
and  of  four  persons  as  sureties  inserted  therein.  The  principal 
and  three  of  these  sureties  sign  it.  Two  of  these  sureties  sign 
and  deliver  it  upon  condition  that  a  certain  one  of  the  other 
two  named  shall  execute  it ;  but  he  does  not,  and  it  is  delivered 
to  the  obligee  without  his  signature.  Held:  That  whether  the 
bond  was  delivered  to  a  third  person,  not  a  party  to  the  bond, 
or  to  the  principal  or  any  other  co-obligor,  the  parties  so  de- 
livering it  on  condition  are  not  bound  by  the  said  bond ;  and  it 
is  not  necessary,  to  give  effect  to  said  condition,  that  the  same 
should  have  been  known  by  the  obligee  when  the  bond  was  de- 
livered to  him.  The  bond,  being  void  as  to  the  two  who  deliv- 
ered it  on  condition,  is  void  as  to  the  third  surety,  who  executed 
it  without  any  condition.  If  the  bond  was  delivered  to  the 
obligee  on  the  condition  stated,  and  the  condition  was  known 
to  him,  he  is  not  entitled  to  recover  on  the  bond.  In  an  action 
on  such  a  bond,  in  the  absence  of  all  evidence  of  a  conditional 
delivery  by  the  sureties  who  signed  it,  the  presumption  of  the 
law  is  that  they  consented  to  the  delivery  of  the  bond  without 
the  signature  of  the  other  party  whose  name  is  on  the  bond. 

In  the  case  of  Preston  vs.  ilall,  23  Grat.,  600,  decided  June, 
1873,  it;  was  held:  A  paper  perfect  as  a  bond,  except  that  there 
is  a  blank  for  the  name  of  the  obligee,  is  signed  by  P.  and  M., 
and  is  put  into  the  hands  of  M.  for  the  purpose  of  borrowing 


704  Citations  to  the  Code  of  Virginia. 

money  upon  it.  It  is  expected  that  F.  will  lend  the  money,  but 
that,  if  he  does  not,  it  ma}^  be  gotten  from  some  other  person, 
M.  obtains  the  money  from  H.,  and  fills  the  blank  in  the  paper 
with  the  name  of  H.,  and  delivers  it  to  him.  This  is  done  in 
the  absence  of  P.  and  without  his  knowledge.  It  is  not  the 
bond  of  P. 

The  reference  to  24  Grat.,  202,  is  an  error. 
In  the  case  of  Penyi  (Assignee)  vs.  Hatnlett  et  als.,  27  Grat., 
337,  decided  March  30,  1876,  it  was  held:  A  blank  paper  is 
signed  and  sealed  by  a  principal  and  by  three  others  who  in- 
tend to  be  his  sureties,  and  it  is  left  with  the  principal  to  be 
filled  up  and  signed  by  him.  He  does  fill  it  up,  and  delivers  it 
to  the  obligee  named  therein.  It  is  not  the  bond  of  the  three, 
and  does  not  bind  them.  But,  the  principal  having  filled  it  up  and 
delivered  it  when  thus  complete,  it  is  his  bond  and  it  binds  him. 
In  the  case  of  Miller  vs.  Fletcher  et  als.,  27  Grat.,  403,  decided 
April  6,  1876,  it  was  held:  If  a  bond,  perfect  on  its  face,  is 
delivered  to  the  obligee  as  an  escrow,  to  be  valid  upon  another 
person's  executing  it,  it  is  valid,  though  the  condition  is  not 
complied  with. 

A  deed  perfect  on  its  face  cannot  be  delivered  as  an  escrow 
to  the  grantee  or  obligee,  upon  a  condition  upon  which  it  is  to 
be  a  valid  deed.  In  all  such  cases  the  condition  is  void,  and 
the  deed  is  at  once  operative.  Parol  evidence  is  inadmissible 
to  prove  that  a  deed  perfect  on  its  face  was  delivered  to  a 
grantee  on  a  condition. 

In  the  case  of  Nash  vs.  Fugate  et  als.,  32  Grat.,  595,  decided 
January,  1880.  A  bond  is  signed  by  the  principal  obligor  and 
a  number  of  sureties,  and  there  are  several  scrolls  below  the 
names  of  the  sureties  who  sign  it.  In  other  respects  the  bond 
is  complete  and  perfect  on  its  face ;  but  the  sureties  sign  it  and 
deliver  it  to  the  principal  obligor,  on  condition  that  he  shall 
obtain  additional  sureties  to  execute  it  before  he  delivers  it  to 
the  obligee,  without  obtaining  additional  securities.  Held :  The 
bond  is  binding  on  the  sureties  unless  the  obligee  had  notice  of 
the  condition  on  which  they  executed  it,  and  the  fact  that  there 
were  other  scrolls  to  the  instrument,  to  which  no  name  was 
signed,  was  not  suflScient  to  put  the  obligee  upon  inquiry  as  to 
the  authority  of  the  obligor  to  deliver  the  bond  to  him.  A 
bond  signed  by  a  principal  obligor  and  sureties,  apparently  per- 
fect and  complete,  may  be  avoided  by  parol  proof  that  the 
obligee,  at  the  time  he  received  it  from  the  principal  obligor, 
had  notice  that  other  persons  were  to  sign  it.  In  such  a  case 
the  evidence  ought  to  be  very  clear  and  satisfactory. 

In  the  case  of  Wendlinger  vs.  Smith  et  als.,  75  Ya.,  309,  it 
was  held:  G.,  executor  of  V.,  makes  a  contract  with  W.  to  sell 
to  W.  a  lot  of  ground.     The  contract  is  perfect  on  its  face  and 


Citations  to  the  Code  op  Virginia.  705 

absolute ;  but  at  the  foot  of  it  there  is  a  paper  referring  to  it, 
and  indicating  that  the  devisees  of  V.  expressed  their  approval 
of  the  sale.  The  paper  has  to  it  nine  seals,  only  four  of  which 
have  names  attached  to  them.  The  writing  is  presumably  a 
part  of  the  instrument,  and  indicates  that  all  the  devisees  of  V. 
were  to  approve  it.  Whether  their  approval  was  to  be  a  condi- 
tion upon  which  the  contract  was  to  take  effect  is  uncertain 
upon  the  face  of  the  papers,  and  therefore  parol  evidence  to 
prove  the  condition  is  competent. 

The  rule  of  law  that  a  deed  cannot  be  delivered  to  a  party  to 
whom  it  is  made  as  an  escrow,  to  be  the  deed  of  the  obligor 
only  on  condition,  and  that  in  such  case  the  delivery  is  absolute 
and  the  condition  nugatory,  is  applicable  only  to  the  case  of 
deeds  which  are  upon  their  face  complete  contracts,  requiring 
nothing  but  delivery  to'  make  them  perfect  according  to  the  in- 
tentions of  the  parties;  not  to  deeds  which  upon  their  face  im- 
port that  something  more  is  to  be  done  besides  deHvery  to 
make  them  competent  and  perfect  contracts  according  to  the 
intention  of  the  parties. 

In  the  case  of  Keene's  Executor  vs.  Monroe  and  Wife,  75  Va., 
424,  decided  April  14,  1881,  it  was  held :  Upon  a  plea  of  nan  est 
factum  the  evidence  showed  that  a  scroll  was  made  in  juxtapo- 
sition to  the  name  of  the  obligor.  Whether  this  was  done  with 
his  consent  was  a  question  of  fact  for  the  jury;  but  whether 
it  was  a  material  alteration  is  a  question  of  law  for  the  court. 
And  in  the  absence  of  fraud  such  an  alteration  is  not  material, 
and  did  not  change  the  legal  effect  of  the  instrument. 

The  reference  to  76  Va.,  537,  is  an  error. 

In  the  case  of  Priest  vs.  Whiteacre  {Sheriff),  78  Va.,  151,  de- 
cided December  13,  1883,  it  was  held:  It  is  incumbent  on  party 
offering  instrument  as  evidence  to  explain  any  appearance  of 
alteration  on  its  face.  But  where  witness  mentions  a  written 
contract,  and  opposite  party  demands  its  production,  it  is  not 
incumbent  on  the  other  party,  who  does  not  offer  or  claim  under 
it,  to  explain  any  appearance  of  alteration  on  its  face. 

In  the  case  of  Batchelder  et  als.  vs.  White,  80  Va.,  103,  de- 
cided January  15,  1885,  it  was  held:  A  material  alteration  of  a 
bond  or  note,  after  its  execution,  when  intentionally  made  by 
one  having  an  interest  in  it,  and  without  the  consent  of  the 
party  bound  by  it,  invahdates  the  instrument  as  to  such  party. 

Q.  borrowed  of  W.  one  thousand  dollars  upon  his  note  en- 
dorsed by  S.  Afterwards,  without  the  consent  or  knowledge  of 
S.,  but  with  the  knowledge  and  consent  of  W.,  the  note  was 
altered  by  Q.  and  raised  to  one  thousand  five  hundred  dollars 
as  security  for  an  additional  five  hundred  dollars  which  there- 
upon W.  lent  Q.  Held:  The  alteration  invalidated  the  note 
entirely  as  to  S. 
46 


706  Citations  to  the  Code  op  Virginia. 

Section  3279. 

In  the  case  of  Kelly  vs.  Paid,  3  Grat.,  191,  decided  July, 
1846,  it  was  held :  The  statute  only  applies  where  the  declara- 
tion alleges  that  the  defendant,  or  the  person  stated  to  have 
made  the  writing,  subscribed  his  name  thereto. 

In  the  case  of  Shepherd,  Hunter  (&  Co.  vs.  jp'rys,  3  Grat.,  442, 
decided  January,  1847,  it  was  held :  It  was  not  the  purpose  of 
the  act  to  narrow  the  defence  under  the  general  issue ;  but,  in 
regard  to  a  particular  matter,  to  require  notice  of  the  defence, 
and  some  security  against  its  being  vexatious  or  frivolous.  The 
act  applies  to  instruments  signed  with  the  name  of  the  partner- 
ship. But  the  question  is  still  open  whether  the  persons  sought 
to  be  charged  are  members  of  the  partnership. 

In  the  case  of  Phaup  vs.  Strattoti,  9  Grat.,  615,  decided  Feb- 
ruary 14,  1853.  In  debt  on  a  note  signed  with  a  partnership 
name,  the  declaration  charges  that  the  defendants  by  their  part- 
nership name  subscribed  the  note,  and  there  was  no  affidavit  by 
the -defendants  or  any  of  them  putting  the  execution  of  the  note 
in  issue.  Held :  That  they  were  precluded  from  showing  that 
the  partnership  had  been  dissolved  before  the  note  was  made, 
and  that  the  person  making  it  had  no  authority  to  execute  it  for 
the  other  partners. 

In  the  case  of  James  River  <&  Kanawha  Company  vs.  Little- 
john,  18  Grat.,  53,  decided  October,  1867,  it  was  held,  p.  76: 
The  bill  having  alleged  that  the  order  was  drawn  by  one  of  the 
defendants,  the  act  applies,  and  no  proof  of  the  signature  is 
necessary. 

In  the  case  of  SimrnonsYS.  Simmons' 8  Administrator,  33  Grat., 
451  and  458,  decided  July,  1880.  With  the  answer  of  a  defend- 
ant a  bond  of  the  plaintiff's  decedent  is  j&led.  The  plaintiff 
filed  no  replication,  but  pleaded  non  est  factum  to  the  bond  filed 
with  the  answer.  On  the  evidence  being  heard,  the  court  below 
decided  that  the  bond  was  not  the  deed  of  the  plaintiff.  -  Held : 
While  it  was  irregular  and  improper  to  have  allowed  a  plea  to 
have  been  filed  to  an  answer,  and  the  proper  course  was  for  the 
plaintiff  to  have  filed  a  general  replication  to  the  answer,  accom- 
panied by  an  affidavit,  putting  in  issue  the  execution  of  the 
bond,  which  would  have  been  sufficient  to  require  the  defendant 
to  prove  such  execution,  yet,  as  the  plea  which  was  sworn  to 
can  be  now  treated  as  an  affidavit,  as  the  parties  took  issue  on 
it,  and  testimony,  and  the  appellant  has  not  been  prejudiced  by 
the  irregular  proceedings  and  trial  on  said  plea  as  such,  the 
decree  will  not  now  be  reversed  for  such  irregularities,  substan- 
tial justice  having  been  done  between  the  parties. 

In  the  case  of  Hamsberger  vs.  Cochran,  82  Va.,  727,  decided 
January  13,  1887,  it  was  held:  Where  bill  or  other  pleading 
sets  up  a  writing  and  alleges  that  it  was  made  and  signed  by 


Citations  to  the  Code  of  Virginia.  707 

defendant's  intestate  in  his  lifetime,  and  defendant  by  his  answer 
under  oath  denies  the  allegation  and  demands  proof,  such 
answer  is  a  substantial  compliance  with  the  statute,  and  puts 
the  genuineness  of  the  writing  in  issue  with  the  burden  of  proof 
on  the  alleger. 

Section  3280. 

For  the  reference  to  3  Grat.,  442,  see  s^ipra,  Section  3279. 

In  the  case  of  Gillett  vs.  The  American  Stove  and  Hollow- 
ware  Company,  29  Grat.,  565,  decided  November,  1877,  it  was 
held :  In  an  action  of  assumpsit,  the  writ  and  declaration  is  in 
the  name  of  a  plaintiff,  which  indicates  that  said  plaintiff  is  a 
corporation,  but  it  is  not  stated  to  be  a  corporation.  The  de- 
fendant pleads  non  assumpsit  but  does  not  file  an  affidavit  that 
the  plaintiff  is  not  a  corporation.  Under  the  statute  it  is  not 
necessary  that  the  plaintiff  should  prove  it  is  a  corporation. 

In  the  case  of  Baltimore  <&  Ohio  Railroad  Company  vs.  Sher- 
man^ s  Administratnx,  30  Grat.,  602,  decided  September  12, 
1878,  it  was  held :  In  an  action  against  a  railroad  company  it  is 
not  necessary  to  aver  in  the  declaration  that  it  is  a  corporation, 
nor  is  it  necessary  to  prove  on  the  trial  that  the  defendant  is  a 
corporation,  unless  with  the  plea  there  is  filed  an  affidavit  deny- 
ing that  it  is.     The  court  will  ex  officio  take  notice  of  the  fact. 

In  the  case  of  Stewart  <&  Palmer  vs.  Thornton  et  als.,  75  Va., 
215,  decided  January  20,  1881,  it  was  held:  The  county  school- 
boards  are  by  act  of  Assembly  constituted  a  corporation,  and  a 
suit  to  recover  a  fund  belonging  to  the  corporation  must  be 
brought  in  its  corporate  name.  A  suit  by  persons  styling  them- 
selves the  directors  of  the  county  school-board  of  their  county 
cannot  be  maintained. 

Section  3281. 

In  the  case  of  Thornton  vs.  Gordon,  2  Rob.,  719,  decided 
March,  1844,  it  was  held :  It  is  a  rule  in  equity  that  the  answer 
of  a  defendant  denying  the  allegations  of  the  bill  must  be  taken 
as  true  unless  disproved  by  two  witnesses,  or  by  one  witness 
and  circumstances  in  his  support ;  it  is  not  in  the  power  of  a 
plaintiff  to  make  his  case  an  exception  to  this  rule  by  stating  in 
his  bill  that  he  expects  to  prove  its  allegations,  and  disclaiming 
a  discovery  from  the  defendant. 

A  bill  is  filed  to  enjoin  the  sale  of  property  conveyed  to  secure 
a  debt  alleged  to  be  usurious,  and  the  plaintiff  avers  that  he 
expects  to  make  full  proof  of  his  allegations,  and  disclaims  all 
benefit  of  any  discovery  from  the  defendant.  The  injunction  is 
awarded,  but  afterwards  the  defendant  files  an  answer  denying  the 
allegations  of  the  bill,  and  the  plaintiff  relies  on  the  testimony  of  a 
single  witness  unsustained  by  any  corroborating  circumstances. 
Held:  The  injunction  must  be  dissolved  and  the  bill  dismissed. 

In  the  case  of  Jones  et  als.  vs.  Abraham,  et  als.,  75  Va.,  466, 


708  Citations  to  the  Code  op  Virginia. 

decided  April  21,  1881,  it  was  held,  p.  469-70 :  Though  a  plain- 
tiff in  his  bill  may  disclaim  the  benefit  of  a  discovery,  he  can- 
not thereby  deprive  the  defendant  of  the  right  to  answer  on 
oath,  and  have  the  advantage  of  such  answer  as  evidence  in  his 
favor  so  far  as  it  is  responsive  to  the  bill.  The  case  provided 
for  by  the  statute  is  exceptional. 

The  answer  of  a  defendant  which  does  not  profess  to  be  on 
his  own  knowledge  can  only  be  treated  as  a  plea  of  denial,  and 
not  as  evidence  in  his  behalf.  Although  an  answer  responsive  to 
the  bill  must  be  taken  as  true  unless  disproved  by  more  than  the 
testimony  of  one  witness,  this  may  be  done  not  only  by  the  tes- 
timony of  two  witnesses,  but  by  one  with  corroborating  circum- 
stances, or  by  documentary  evidence  alone. 

In  the  case  of  Moore  vs.  Ullman  et  als.^  80  Va.,  307,  decided 
March  19,  1885,  it  was  held,  p.  310-'ll :  The  testimony  of  one 
witness  with  corroborative  circumstances,  or  circumstances 
alone,  or  documentary  evidence  alone,  may  overcome  an  answer 
that  is  responsive  to  the  averments  of  the  bill. 

Section  3283. 

In  the  case  of  Mills  vs.  The  Central  Savings  Bank,  16  Grat., 
94,  decided  September  3,  1860,  it  was  held,  p.  96 :  In  an  action 
of  debt  against  makers  and  prior  endorsers  of  a  negotiable  note, 
they  plead  jointly  nil  debet  and  usury.  Before  the  trial  the 
maker  confesses  a  judgment,  and  there  is  final  judgment  against 
him,  and  the  two  prior  endorsers  release  him  from  all  liability 
to  them.  As  the  maker  is  liable  to  the  two  last  endorsers  under 
the  act  for  five  per  cent,  damages  for  any  amount  of  the  debt 
they  may  have  to  pay,  he  is  not  a  competent  witness  for  the  de- 
fendants to  prove  usury. 

In  the  case  of  Insurance  Com/pany  of  the  Yalhy  of  Virginia 
vs.  Barley's  Executors,  16  Grat.,  363,  decided  February  18, 1863, 
it  was  held  :  A  power  of  attorney  to  confess  a  judgment  may  be 
executed  before  the  action  is  brought. 

A  judgment  may  be  confessed  either  in  court  or  in  the  clerk's 
office  by  an  attorney  in  fact,  though  the  attorney  is  not  a  lawyer. 

As  actions  at  law  in  the  county  court  are  cognizable  only  at 
the  quarterly  terms,  so  motions  to  set  aside  any  of  the  proceed- 
ings in  the  office  in  such  actions  are  cognizable  only  at  a  quar- 
terly term,  and  therefore  the  preceding  vacation  referred  to  in 
the  statute  means,  in  its  apphcation  to  such  cases,  the  interval 
between  the  quarterly  terms  of  the  court. 

In  the  case  of  Brown  vs.  Hume,  16  Grat.,  456,  decided  Feb- 
ruary 23,  1864,  it  was  held :  A  judgment  confessed  in  the  clerk's 
office  on  the  morning  of  the  first  day  of  the  term  of  the  court, 
before  the  hour  for  the  opening  of  the  court,  is  a  judgment  con- 
fessed in  vacation,  and  valid. 


Citations  to  the  Code  op  Virginia.  709 

In  the  case  of  BrockenborougK s  Executors  et  als.  vs.  Brocken- 
horough's  Administrator  et  als.,  31  Grat.,  580  and  599,  decided 
March,  1879.  L.  brings  an  action  on  a  bond  against  B.  which 
is  on  the  office-judgment  of  the  court  at  its  March  term,  which 
commences  on  the  third  of  the  month,  and  the  office-judgment  is 
confirmed  on  the  fifth,  which  is  the  last  day  of  the  term  of  the 
court.  On  the  first  day  of  the  same  term  of  the  court  B.  goes 
into  court  and  confesses  a  judgment  in  favor  of  S.,  no  suit  having 
been  instituted  against  B.  Held :  The  judgment  in  favor  of  S. 
is  valid,  though  no  suit  had  been  instituted  by  him  against  B. 
That  the  judgment  of  L.  relates  back  to  the  first  day  of  the 
term,  and,  the  law  not  recording  a  fraction  of  a  day,  both  judg- 
ments stand  as  of  the  same  date. 

In  the  case  of  Shadrack's  Administrator  vs.  Woolfolk  et  als., 
32  Grat.,  707,  decided  January,  1880,  it  was  held :  Judgment 
confessed  in  the  clerk's  office,  though  no  process  appears  to 
have  been  issued  or  served,  and  though  the  clerk  has  failed  to 
enter  it  upon  the  order  or  minute  book,  or  any  other  book  in 
the  office,  and  the  only  evidence  of  it  is  unsigned  memorandum 
endorsed  on  a  declaration  which  seems  to  have  been  filed  and 
the  bond  enclosed  in  the  declaration,  is  a  valid  judgment,  and  en- 
titled to  rank  as  such  against  other  creditors  of  the  debtor. 

If  the  entry  of  a  judgment  confessed  in  the  office  upon  the 
order  or  minute  book  has  not  been  made  at  the  time  of  confes- 
sion, the  clerk  may  make  the  entry  at  any  time,  and  if  he  fails 
to  do  it,  the  court  may  at  any  time  direct  him  to  make  an  entry. 

In  the  case  of  Smith  et  als.  vs.  Mayo  (Trustee),  83  Va.,  910, 
decided  November,  1887,  it  was  held :  In  entering  a  confession 
of  judgment  the  clerk  acts  privately  as  a  ministerial  officer,  and 
he  may  enter  his  own  confession  of  judgment  in  favor  of  his 
creditors,  and  it  will  be  valid. 

Section  3284. 

In  the  case  of  Blane  vs.  Sansum,  2  Call,  495  (2d  edition,  415), 
decided  October  18,  1800,  it  was  held:  If  a  declaration  be 
blank  as  to  the  sums,  the  date  of  the  obligation,  the  assignment 
thereof  to  the  plaintiff,  and  as  to  the  damages,  an  office-judg- 
ment rendered  thereon  is  erroneous. 

In  the  case  of  Waugh  vs.  Carter,  2  Munf.,  333,  decided  March, 
1811,  it  was  held :  It  is  error  sufficient  to  reverse  an  office-judg- 
ment that  the  common  order  was  entered  before  the  plaintiff 
filed  his  declaration. 

In  the  case  of  Winchester  et  als.  vs.  TTie  President  and  Direct- 
ors of  the  Bank  of  Alexandria,  2  Munf.,  339,  decided  June  26, 
1811,  it  was  held:  A  judgment  by  default  cannot  be  entered 
when  the  writ  has  not  been  returned. 

In  the  case  of  Crews  and  Higginhotham  vs.  Garland,  2  Munf., 


710  Citations  to  the  Code  of  Virginia. 

491,  decided  November  19,  1811,  it  was  held :  A  writ  cannot  be- 
legally  executed  after  the  term  to  which  it  was  returnable. 

A  judgment  entered  in  the  clerk's  office  before  the  execution 
and  return  of  the  writ  is  erroneous,  and  cannot  be  supported 
bj  the  writ's  being  returned  executed  to  the  term  when  judg- 
ment is  made  final. 

In  the  case  of  The  James  River  &  Kanawha  Company  vs. 
Lee^  16  Grat.,  424,  decided  November  23,  1863,  it  was  held :  An 
office-judgment  in  an  action  of  ejectment  does  not  become  final 
without  the  intervention  of  the  court  or  a  jury;  but  there  ought, 
in  every  such  case,  to  be  an  order  for  an  inquiry  of  damages.  • 

In  the  case  of  Johnson  vs.  Fi'y,  88  Va,,  695,  decided  January 
28,  1892,  it  was  held :  Where  the  declaration  does  not  plainly 
describe  the  items  and  the  account  therewith  filed,  but  merely 
mentions  the  sums  paid,  without  giving  any  information  about 
them,  the  account  is  insufficient. 

Section  3285. 

In  the  case  of  Ruffin  vs.  Call,  2  "Washington,  233  (2d  edition, 
page  181),  decided  at^  April  term,  1796.  Justice  Roane,  in  de- 
livering the  opinion  of  the  court,  stated,  obiter  dictum :  That  in 
case  of  an  action  on  a  bond  with  a  collateral  condition  an  in- 
quiry of  damages  is  necessary. 

In  the  case  of  Hunt  et  als.  vs.  McRea,  6  Munf.,  454,  decided 
December  16,  1819,  it  was  held :  A  judgment  at  rules  in  a 
clerk's  office  cannot  lawfully  be  made  final  on  a  declaration  in 
debt  for  money  lent,  and  not  alleged  to  be  founded  on  any  spe- 
cialty bill  or  note  in  writing,  until  a  writ  of  inquiry  has  been 
awarded  and  executed. 

In  the  case  of  Metcalfe  vs.  Battaile^  1  Ya.  (Gilmer),  191,  de- 
cided March  12,  1821,  it  was  held :  A  negotiable  note  is  not,  as- 
to  the  endorser,  a  note  for  the  payment  of  money  within  the 
meaning  of  the  act  of  1804.  Judgment  cannot,  consequently, 
be  rendered  in  such  case  without  the  intervention  of  a  jury. 
On  reversing  such  judgment,  when  there  has  not  been  a  jury, 
the  defendant  will  be  allowed  to  object  on  the  merits  in  the 
court  below. 

In  the  case  of  Hatcher  vs.  Lewis,  4  Eand,  152,  decided  March, 
1826,  it  was  held:  Where  a  joint  action  is  brought  against 
drawer  and  endorsers  of  a  negotiable  note  an  office-judgment 
cannot  be  confirmed  against  all  or  either  of  the  defendants  with- 
out a  writ  of  inquiry. 

In  the  case  of  Reese  vs.  Conococheagite  Bank,  5  Rand.,  326, 
decided  June,  1827,  it  was  held:  A  judgment  by  default,  for 
want  of  appearance,  founded  on  an  instrument  of  writing  for 
the  payment  of  money,  on  which  an  endorsement  of  a  credit  is 
made  by  the  plaintiff  himself,  ought  to  be  entered  subject  to 


Citations  to  the  Code  of  Virginia.  711 

such  credit,  or  if  the  plaintiff  refuses  to  take  the  judgment  in 
that  way  a  writ  of  inquiry  should  be  awarded. 

In  the  case  of  Sheltotis  Executors  vs.  Welches  Administrators, 
7  Leigh,  175,  decided  February,  1836.  In  a  debt  on  a  decree 
for  money  a  conditional  judgment  is  entered  in  the  office,  with- 
out awarding  a  writ  of  inquiry  of  damages,  and  the  judgment 
not  being  set  aside  becomes  final  at  the  next  term,  and  execu- 
tion is  sued  out  on  the  judgment,  but  at  the  ensuing  term 
the  court  set  aside  the  judgment  as  irregularly  entered,  and 
gave  defendants  leave  to  plead  to  the  action.  Held:  It  was 
error  to  enter  judgment  in  the  office  without  awarding  an  in- 
quiry of  damages,  and  this  was  a  clerical  error,  which  the  court 
properly  corrected  at  a  subsequent  terms. 

In  the  case  of  McMillion  vs.  Dohhins,  9  Leigh,  422,  decided 
July,  1838,  it  was  held  :  In  an  action  on  the  case,  if  there  be  an 
office-judgment  against  the  defendant  with  a  writ  of  inquiry,  and 
afterwards  without  any  plea  in  the  cause  the  jury  be  sworn  as 
if  there  was  an  issue,  and  a  verdict  be  found  for  the  defendant, 
the  verdict  will  be  set  aside  and  a  new  trial  directed. 

For  the  reference  to  16  Grat.,  424,  see  case  of  James  River 
<&  Kanawha  Com^pany  vs.  Lee,  supra,  Section  3284. 

The  reference  to  32  Grat.,  472,  is  an  error. 

In  the  case  of  Smithson  vs.  Briggs  et  ux.,  33  Grat.,  180,  de- 
cided April  15,  1880,  it  was  held:  An  office-judgment  in  an 
action  of  ejection  does  not  become  final  without  the  intervention 
of  a  court  or  jury. 

Section  3286. 

In  the  case  of  Grigg  vs.  DaUheimer,  88  Va.,  508,  decided 
December  10,  1891,  it  was  held:  When  under  said  section 
plaintiff  in  assumpsit  filed  with  his  declaration  an  affidavit  to 
the  justness  of  his  account  and  the  time  from  which  it  bears  in- 
terest, and  defendant  filed  plea  of  non  assurrvpsit  without  affi- 
davit, and  his  plea  is  stricken  out  and  his  subsequent  plea  with 
affidavit  is  rejected  and  final  judgment  given  for  plaintiff,  such 
judgment  is  not  void,  as  the  court  had  jurisdiction  of  both  sub- 
ject-matter and  parties,  and  a  writ  of  prohibition  will  not  lie  to 
restrain  its  enforcement. 

Section  3287. 

In  the  case  of  Digges's  Executor  vs.  Dunn's  Executor,  1  Munf., 
56,  decided  March  13, 1810,  it  was  held :  A  judgment  at  rules  in 
the  clerk's  office  of  a  county  court  ought  to  be  entered  as  of  the 
last  day  of  the  succeeding  quarterly  term,  but  if  it  be  entered  as 
at  rules  only,  it  is  merely  a  clerical  misprision  and  therefore 
amendable. 

In  such  case,  if  the  judgment  be  declared  upon  as  of  a  quar- 
terly term,  and  the  transcript  produced  be  of  a  judgment  at 


712  Citations  to  the  Code  op  Virginia. 

rules  (which  ought  to  have  been  entered  as  of  such  quarterly 
term),  the  variance  as  immaterial. 

In  the  case  of  Wallace  et  als.  vs.  Baker,  2  Munf.,  334,  decided 
June  22, 1811,  it  was  held :  When  the  appearance  bail,  having  been 
admitted  to  defend  the  suit,  afterwards  waives  his  plea,  judgment 
is  to  be  entered  against  the  principal  as  well  as  against  the  bail. 

In  the  case  of  Evans  vs.  Freeland,  3  Munf.,  119,  decided  Jan- 
uary 11,  1812,  it  was  held :  A  scire  facias  purporting  to  be 
founded  upon  a  judgment  entered  at  rules  in  the  clerk's  office 
of  a  county  court,  but  not  mentioning  that  the  judgment  was 
confirmed,  by  not  being  set  aside  at  the  ensuing  quarterly  term, 
nor  even  that  such  quarterly  term  accrued  prior  to  the  suing 
out  of  the  said  scire  facias,  ought  to  be  quashed  as  not  setting 
forth  any  legal  cause  of  action. 

In  the  case  of  Baird  vs.  Peter,  4  Munf.,  76,  decided  May 
15,  1813,  it  was  held:  Under  the  act  judgment  may  be  entered, 
as  well  as  execution  issued  for  interest,  though  not  mentioned  in 
the  writing,  and  not  demanded  by  the  declaration. 

In  the  case  of  Green  vs.  Shipwith,  1  Hand.,  460,  decided  May, 
1823,  it  was  held  :  It  is  an  error  in  a  court  of  law  to  enter  a  judg- 
ment against  a  defendant  on  the  day  after  a  conditional  judg- 
ment has  been  confirmed  at  the  rules.  The  defendant  has  until 
the  next  term  after  the  conditional  is  confirmed  in  the  office  'to 
set  it  aside,  under  this  act  of  Assembly. 

In  the  case  of  White  vs.  Archer,  2  Va.  Cases,  201,  decided  by 
the  General  Court,  June,  1820,  it  was  held :  A  capias  ad  respon- 
dendum was  issued  returnable  to  the  rules  on  the  first  Monday 
in  April,  and  on  that  day  common  order  was  entered ;  the  first 
Monday  in  May  was  the  next  rule-day,  on  which  day  the  com- 
mon order  was  confirmed  in  the  office.  On  the  same  day  the 
court  sat.  It  was  not  regular  to  place  that  case  on  the  office- 
judgment  docket  of  that  term,  because  the  statute  directs  that 
the  docket  shall  be  made  out  before  every  term. 

Anonymous. — 4  H.  &  M.,  476,  decided  by  the  Superior  Court  of 
Chancery  for  Richmond,  September,  1809,  it  was  held :  On  a 
bill  taken  as  confessed  the  plaintiff  cannot  obtain  a  final  decree 
without  filing  his  documents  and  proving  his  case. 

In  the  case  of  Ender's  Executors  vs.  Burch,  15  Grat.,  64,  de- 
cided January,  1859,  it  was  held :  If  the  term  of  a  circuit  court 
lasts  more  than  fifteen  days,  all  office-judgments  in  which  no 
writ  of  inquiry  is  ordered  become  final  judgments  on  the  fif- 
teenth day,  and  cannot  afterwards  be  set  aside  by  the  court. 
WJiere  a  court  authorizes  executions  to  issue  upon  judgments 
recovered  during  the  term,  the  judgments  become  final  from  the 
time  when  executions  may  issue,  and  cannot  afterwards  be  set 
aside  by  the  court.  • 

A  court  having  set  aside  an  office-judgment,  and  the  execution 


Citations  to  the  Code  op  Virginia.  713 

whicli  had  issued  upon  it  after  the  fifteenth  day  of  the  term, 
and  permitted  the  defendant  to  plead,  the  plaintiff  may  have  a 
supersedeas  from  this  order,  and  though  that  part  of  the  order 
setting  aside  the  judgment  is  interlocutory,  the  appellate  court 
will  reverse  the  whole  order. 

See  the  case  of  the  Jaines  River  &  Kanawha  Company  vs. 
Lee,  16  Grat.,  424,  ante.  Section  3284. 

In  the  case  of  ^Vall  vs.  Atv)ell^  21  Grat.,  401,  decided  August, 
1871,  it  was  held  :  In  debt  on  bond,  if  the  common  order  and 
the  common  order  confirmed  have  been  regularly  entered  at 
rules,  the  cause  is  properly  on  the  oflBce-judgment  docket  at  the 
next  term  of  the  court,  though  no  endorsement  of  the  proceed- 
ings may  have  been  made  upon  the  papers  in  the  cause.  If  the 
proceedings  in  the  ojfice  has  been  so  irregular  that  the  cause  is 
not  properly  on  the  office-judgment  docket,  the  court  should  re- 
mand it  to  the  rules  for  proper  proceedings. 

An  office-judgment  cannot  be  set  aside  when  it  stands  as  an 
office-judgment  on  the  docket  of  the  court  by  a  plea  in  abatement. 

In  the  case  of  Tumhull  vs.  Thompson,  27  Grat.,  306,  decided 
March  16,  1876,  it  was  held :  A  summons  in  debt  is  served  on  a 
defendant  on  the  3d  of  February,  and  the  judgment  by  default 
becomes  final  on  the  3d  of  March.  Under  the  statute  the  day  of 
the  service  of  the  process  may  be  counted,  and  therefore  thirty 
days  had  elapsed  between  the  service  of  process  and  the  judg- 
ment, and  it  is  a  valid  judgment. 

In  the  case  of  Dillard  vs.  Thornton,  29  Grat.,  392,  decided 
November,  1877.  On  September  30,  1867,  a  summons  in  debt 
on  a  single  bill  was  sued  out,  returnable  to  the  succeeding  Oc- 
tober rules,  to  which  rules  it  was  returned  executed  on  the  3d 
of  October,  and  the  plaintiff  filed  his  declaration,  and,  the  de- 
fendant not  appearing,  a  conditional  judgment  was  entered 
against  him,  which  was  confirmed  at  the  succeeding  rules,  held 
October  28,  1867 ;  and  final  judgment  was  entered  against  the 
defendant  on  the  last  day  of  the  succeeding  term  of  the  circuit 
court,  which  was  October  31,  1867,  which  was  less  than  one 
month  after  the  service  of  process  on  the  defendant.  Held: 
The  entry  of  final  judgment  against  the  defendant  within  one 
mouth  after  he  was  served  with  process  was  erroneous. 

According  to  the  true  construction  of  our  statutes,  where  less 
than  one  month  has  elapsed  between  the  service  of  process  and 
the  end  of  the  succeeding  term,  the  conditional  judgment  will 
become  final  at  the  term  next  succeeding  the  expiration  of  one 
mouth  after  the  service  of  the  process.  The  aforesaid  judg- 
ment of  October  31,  1867,  having  been  set  aside  in  the  court 
below  on  the  motion  of  the  defendant,  the  court  should  have 
reinstated  the  cause  upon  the  docket,  with  liberty  to  the  de- 
fendant to  plead,  and  to  set  aside  the  office-judgment  upon  the 


714  Citations  to  the  Code  op  Virginia. 

usual  terms,  the  said  judgment  to  become  final  in  case  of  his 
failure  to  set  it  aside.  Where  under  such  a  judgment  a  ji.  fa. 
is  issued,  and  there  is  a  proceeding  by  suggestion  against  per- 
sons indebted  to  the  defendant,  such  defendant  may,  upon  pro- 
per notice,  appear  in  such  proceeding  and  have  the  judgment 
vacated  and  all  proceedings  thereunder  quashed.  A  notice  to 
reverse  or  correct  a  judgment  by  default,  or  to  quash  an  execu- 
tion, need  not  be  in  writing.  All  that  is  requisite  is  that  there 
should  be  reasonable  notice. 

In  the  case  of  Terry  (Assignee)  vs.  Dickinson  et  als.^  75  Va., 
475,  decided  April  21,  1881,  it  was  held :  Where  process  in  an 
action  of  debt  was  served  upon  a  defendant  whilst  he  was  in 
the  military  service  of  the  Confederate  States,  and  there  is 
an  office-judgment  confirmed  whilst  he  is  in  the  service,  the 
Judgment  is  a  valid  judgment,  and  cannot  be  questioned  in 
another  suit.  The  judgment  is  not  void  though  no  declaration 
was  filed  in  the  cause,  and  can  only  be  avoided  by  the  proper 
proceedings  taken  in  due  season  in  the  court  which  rendered 
the  judgment.  If,  upon  proceedings  in  the  county  court  which 
rendered  the  judgment  to  set  it  aside,  that  court  sustains  the 
motion,  and  upon  writ  of  error  to  the  circuit  court  the  judgment 
of  the  county  court  is  reversed  and  the  motion  dismissed,  and 
there  is  no  appeal,  the  judgment  of  the  circuit  court  is  con- 
clusive in  favor  of  the  original  judgment  upon  all  other  courts^ 

In  the  case  of  Neal  et  als.  vs.  Utz  et  ah.,  75  Va.,  480,  decided 
April  21,  1881,  it  was  held:  Where  process  was  served  upon  a 
defendant  in  an  action  of  debt  on  the  day  on  which  he  was 
convicted  of  a  felony,  but  before  the  conviction  had  taken 
place,  and  in  that  action  a  judgment  by  default  was  obtained 
against  the  defendant  while  he  was  confined  in  the  penitentiary, 
the  court  having  fairly  acquired  jurisdiction  in  the  cause,  the 
doctrine  of  relation  does  not  apply  so  as  to  override  and  avoid 
the  process. 

Whether  a  judgment  be  the  act  of  the  court,  or  be  entered 
up  by  the  clerk  under  the  statute,  the  effect  is  the  same ;  in 
either  case  it  is  the  act  of  the  law,  and  until  reversed  by  the 
court  which  rendered  it,  or  by  a  superior  tribunal,  it  imports 
absolute  verity,  and  is  as  effectual  and  binding  as  if  pronounced 
upon  a  trial  on  its  merits. 

In  the  case  of  Mc  Veigh  vs.  Bank  of  Old  Dominion,  76  Va.,  267. 

Scire  Facias. — Neither  declaration  nor  rule  is  necessary  upon 
a  scire  facias  to  revive  a  judgment.  If  scire  facias  is  return- 
able to  rules,  and  defendant  makes  default,  there  should  then  be 
an  award  of  execution  which,  if  not  set  aside  at  the  next  term, 
becomes  a  final  judgment  as  of  the  last  day  of  the  term.  No 
order  of  the  court  is  necessary  in  such  case,  but  could  preju- 
dice no  one. 


Citations  to  the  Code  of  Virginia.  715 

In  the  case  of  Robertson  vs.  Mays,  76  Va.,  708.  This  section 
applies  to  "judgments  by  default,"  and  perhaps  to  "decrees  on 
bills  taken  for  confessed,"  and  not  where  the  defendants  appear 
and  answer;  and  the  thirty  days  necessary  to  elapse  in  order  to 
ripen  a  cause  for  hearing  on  its  merits  are  thirty  days  from  the 
service,  not  the  return  of  the  process. 

Section  3288. 

In  the  case  of  Bunt  vs.  ^V^lkinso}^,  2  Call,  50  (2d  edition,  41, 
and  quoted  in  the  Code,  65),  decided  November  9,  1799,  it  was 
held  :  Plea  pais  darrien  continuance  may  be  pleaded  after  office- 
judgment  and  before  the  end  of  the  next  quarterly  term. 

In  the  case  of  Mandeville  vs,  Mandeville,  3  Call,  225  (2d  edi- 
tion, 194j,  decided  May  7,  1802,  it  was  held:  The  defendant 
may  be  ruled  to  trial  in  the  county  court  at  the  first  term  after 
the  office-judgment. 

In  the  case  of  Bradley  vs.  Welsh,  1  Munf.,  284,  decided  April 
18,  1810,  it  was  held :  A  plea  in  abatement  ought  not  to  be  re- 
ceived to  set  aside  an  office-judgment,  unless  it  be  of  matter 
which  arose  pais  darrien  C07itinuance. 

In  the  case  of  Gray  <&  Scott  vs.  Campbell,  3  Munf.,  251,  de- 
cided April  2, 1812,  it  was  held :  It  is  no  plea  to  an  action  upon 
an  injunction  bond  "that  the  injunction  was  not  dissolved  un- 
conditionally, but  upon  terms  that  the  plaintiff  at  law  should 
execute  a  bond  for  securing  the  title  to  a  tract  of  land,"  with- 
out averring  in  the  plea  that  such  bond  had  not  been  given» 
Such  defective  plea  ought  not  to  be  received  by  the  court  to  set 
aside  an  office-judgment.  Where  an  injunction  is  dissolved 
upon  a  condition,  and  that  condition  has  been  complied  with 
by  the  defendants  in  equity,  the  surety  in  an  injunction  bond  is 
not  exonerated. 

In  the  case  of  Wychie  vs.  Macklin,  2  Rand.,  426,  decided  May 
7,  1824,  it  was  held :  Where  pleas  are  offered  on  setting  aside 
an  office-judgment,  the  court  may  exercise  a  sound  discretion 
about  receiving  them,  and  should  receive  none  (if  objected  to) 
that  do  not  go 'to  the  merits  of  the  action. 

In  the  case  of  Franklin  vs.  Cox,  4  Rand.,  448,  decided  Au- 
gust, 1826,  it  was  held:  The  plea  of  non  est  factum  is  a  plea  to 
the  merits,  and  ought  to  be  received  after  an  issue  made  up  on 
the  plea  of  payment,  upon  the  delay  in  filing  it  being  sufficiently 
accounted  for. 

In  the  case  of  Syme  vs.  Orijfin,  4  H.  &  M.,  277,  decided  No- 
vember, 1809,  it  was  held :  A  general  demurrer  is  an  issuable 
plea,  which  ought  to  be  received  for  the  purpose  of  setting 
aside  an  office-judgment. 

In  the  case  of  Backhouse  vs.  Jones's  Administrators,  1  Va. 
(Gilmer),  3,  decided  1805,  it  was  held :  The  plea  of  the  statute 


716  Citations  to  the  Code  of  Virginia. 

of  limitations  ought  not  to  be  allowed  at  any  term  subsequent 
to  that  at  which  the  office-judgment  ought  to  have  been  set 
aside,  unless  some  sufficient  cause  appeared  to  excuse  the  neg- 
lect of  pleading  it  in  due  time. 

The  reference  to  16  Grat.,  424,  is  to  the  case  of  James  River 
<&  Kanawha  Company  vs.  Lee,  quoted  supra.  Section  3287. 

The  reference  to  21  Grat.,  401,  is  to  the  case  of  Wall  vs.  At- 
well^  cited  supra,  Section  3287. 

In  the  case  of  Smithson  vs.  Briggs  et  ux.,  33  Grat.,  180,  de- 
cided April  15,  1880,  it  was  held :  The  defendant  in  the  eject- 
ment may,  upon  notice  to  the  plaintiff,  appear  at  the  next  term 
of  the  court,  and  move  the  court  to  set  aside  the  judgment  and 
to  allow  him  to  plead  therein. 

Section  3290. 

In  the  case  of  Hook  vs.  Boss,  1  H.  &  M.,  310,  decided  June 
10,  1807,  it  was  held :  In  case  of  a  bill  in  equity  for  specific 
performance  of  an  agreement,  if  the  defendant  be  guilty  of  con- 
tumacy, and  the  court,  for  want  of  evidence  which  he  is  bound  to 
disclose,  be  not  able  to  direct  the  specific  performance,  a  sum  of 
money  may  in  like  manner  be  decreed  for  the  purpose  of  com- 
pelling the  production  of  such  evidence. 

A  writ  of  sequestration  cannot  regularly  be  issued  on  a 
sheriff's  return  of  non  est  inventus  upon  an  attachment  for  con- 
tempt. 

In  the  case  of  Postal  Telegraph,  Cable  Company  vs.  N.  &W. 
R.  R.  Co.,  88  Ya.,  929,  decided  March  24,  1892,  it  was  held: 
Where  defendant's  employees,  without  orders,  drove  across 
complainant's  railroad  after  award  of  injunction  to  restrain 
trespass  on  its  roadway,  and  defendant  disclaimed  all  evil  intent, 
it  was  error  to  impose  a  fine  for  contempt. 

Section  3291. 

The  case  of  Kennedy  vs.  Baylor,  1  Wash.,  162,  decided  at 
the  spring  term,  1793,  and  quoted  in  the  Code,  is  merely  a  case 
in  which  the  practice  was  in  accordance  with  this  section ;  the 
decision  is  entirely  on  the  merits  of  the  case. 

In  the  case  of  Dalhy  vs.  Price,  2  Wash.,  246  (1st  edition,  191), 
decided  at  April  term,  1796,  it  was  held:  In  all  cases  where  a 
general  commission  issues  for  taking  depositions,  upon  an  an- 
swer and  replication  in  any  suit  in  the  high  court  of  chancery, 
the  cause  must  remain  at  rules  six  months  from  the  time  of 
filing  the  rephcation  before  it  is  set  down  for  hearing ;  unless 
this  be  dispensed  with  by  consent  of  parties,  entered  on  the 
record. 

In  the  case  of  Picket  et  ux.,  et  als.  vs.  Chilton,  5  Munf.,  467, 
decided  March  11,  1817,  it  was  held :  It  is  not  sufficient  ground 


Citations  to  the  Code  of  Virginia.  717 

for  reversing  an  interlocutory  decree,  that  no  day  was  given  an 
infant  defendant  to  show  cause  against  it,  after  he  should  come 
of  age,  because  such  omission  may  be  corrected  in  the  final 
decree. 

In  the  case  of  Jones  vs.  Mason  {Executor  of  Jones),  5  Rand., 
577,  decided  August,  1827,  it  was  held :  When  a  cause  is  set 
down  for  hearing  by  consent,  upon  bill  and  answer,  the  answer  is 
to  be  taken  as  true. 

In  the  case  of  Poling  vs.  Johnson,  2  Rob.,  255,  decided  Au- 
gust, 1843,  it  was  held:  In  a  suit  in  chancery,  where  an  answer 
is  filed  at  rules  in  due  time,  four  months  from  the  time  of  the 
repHcation  to  the  answer  are  allowed  the  parties  for  taking  their 
depositions,  and  until  the  expiration  of  the  said  four  months 
neither  party  has  the  right  (without  the  consent  of  the  other)  to 
set  the  cause  for  hearing. 

In  the  case  of  Dahney  vs.  Preston*s  Administrators,  25  Grat., 
838,  decided  February  18, 1875,  it  was  held :  The  decree  in  the 
court  below  was  made  when  there  was  no  replication  to  the 
answer  of  D.,  and  after  an  appeal  from  the  decree  by  D.  was 
perfected,  the  court,  on  the  motion  of  the  plaintiflFs,  made  an 
order  permitting  the  plaintiffs  to  file  the  replication  nunc  pro 
tunc.  If  it  was  a  proper  case  for  such  an  order,  the  court  should 
have  allowed  D.  time  to  take  testimony  to  meet  the  new  phase 
of  the  case  presented  by  the  issue  thus  taken  on  his  answer. 

Section  3292. 

In  the  case  of  Key  vs.  Hord  et  als.,  4  Munf.,  485,  decided 
October  27, 1815,  it  was  held :  On  the  hearing  of  a  suit  in  chan- 
cery, if  it  be  discovered  that  the  cause  is  not  matured  for  hear- 
ing as  to  some  of  the  defendants,  against  whom  the  plaintiff 
appears  to  have  a  claim  in  equity,  the  bill  ought  not  to  be  dis- 
missed upon  the  merits,  but  only  as  to  those  defendants  against 
whom  there  is  no  equity ;  as  to  the  other  defendants,  it  should 
be  sent  back  to  the  rules  for  further  proceedings,  notwithstand- 
ing the  plaintiff  may  have  been  negligent,  and  the  cause  was 
prematurely  set  for  hearing  on  his  motion. 

In  the  case  of  Cartigne  vs.  Raymond  et  als.,  4  Leigh,  579, 
decided  November,  1833.  Upon  a  bill  in  chancery  by  a  dis- 
tributee against  an  administrator  and  his  surety,  alleging  that 
the  administrator  has  not  duly  accounted,  and  praying  an  ac- 
count, the  bill  is  taken  pro  confesso  as  to  the  administrator,  but 
the  surety  answers  and  proves  that  the  plaintiff,  on  a  full  and 
final  settlement,  has  released  the  administrator,  and  so  is  not 
entitled  to  an  account ;  upon  which  the  chancellor  dismisses  the 
bill  with  costs  as  to  both  defendants.  Held :  The  bill  was  pro- 
perly dismissed  as  to  both  defendants. 


718  Citations  to  the  Code  of  Virginia. 

Section  3293. 
In  the  case  of  Eubank  et  als.  vs.  BalVs  Executor;  Same  vs. 
Sandige  [Assignee),  etc.,  4  Leigh,  308  and  317,  decided  February, 
1833.  Judgment  upon  nil  dicit  in  county  court,  entered  on  the 
minute  book  "  for  specialty  and  costs,"  and  then  entered  at  large 
by  the  clerk  in  the  order-book  for  debt,  with  interest  from 
March  1,  1817,  the  date  of  the  specialty,  though  the  day  of 
payment  appointed  in  the  condition  was  March  1,  1818,  the 
clerk,  in  his  entry  in  the  order-book,  following  not  the  condition 
of  the  bond,  but  a  memorandum  thereon  endorsed,  that  the  debt, 
if  not  punctually  paid,  should  bear  interest  from  the  date  ojf 
bond.     Held : 

1.  It  was  error  to  give  interest  from  the  date  of  bond,  instead 
of  from  the  day  of  payment ;  and 

2.  This  error  was  a  clerical  mistake,  amendable  by  the  court  at 
a  subsequent  term. 

In  the  case  of  SouthalVs  Administrators  vs.  The  Exchange 
Bank  of  Virginia,  12  Grat.,  312,  decided  April,  1855,  it  was 
held :  In  an  action  of  debt  the  common  order  is  confirmed  at 
rules  irregularly,  the  defendant  having  pleaded  to  a  part  of 
plaintiff's  demand.  This  irregularity  cannot  afterwards  be  cor- 
rected at  rules. 

An  irregularity  committed  at  rules  may  be  corrected  at  the 
next  term  of  the  court,  and  the  plaintiff  may  be  allowed  to  with- 
draw a  defective  replication  and  reply,  and  if  the  plea  filed  at 
rules  does  not  go  to  the  plaintiff's  whole  demand,  he  may  sign 
judgment  for  so  much  as  is  not  covered  by  the  plea. 

In  such  case  the  defendant  is  entitled  to  a  continuance  of  the 
cause,  as  of  right  if  he  demands  it. 

In  the  case  of  Insurance  Company  of  the  Yalley  of  Virginia 
vs.  Barley's  Administrators,  16  Grat.,  363,  decided  February 
18,  1863,  it  was  held :  As  actions  at  law  in  the  county  court  are 
cognizable  only  at  the  quarterly  terms,  so  motions  to  set  aside 
any  of  the  proceedings  in  the  office  in  such  actions  are  cogniz- 
able only  at  a  quarterly  term.  And  therefore  the  "  proceeding 
vacation"  means  in  its  application  to  such  cases  the  interval 
between  the  quarterly  terms  of  the  court. 

In  the  case  of  Wall  vs.  Atwell,  21  Grat.,  401,  decided  August, 
1871,  it  was  held:  If  the  proceedings  in  the  office  had  been  so 
irregular  that  the  cause  is  not  properly  on  the  office-judgment 
docket,  the  court  should  remand  it  to  the  rules  for  proper  pro- 
ceedings. 

Section  3294. 

The  reference  to  7  Leigh,  720,  is  an  error. 

In  the  case  of  Early  et  ux.  vs.  Eriend  et  als.,  16  Grat.,  21,  de- 
cided August  28,  1860,  it  was  held :  One  tenant  in  common  may 
maintain  a  suit  in  equity  against  his  co-tenant,  who  has  occu- 


Citations  to  the  Code  of  Vibginia.  719 

pied  the  whole  of  the  common  property,  for  an  account  of  rents 
and  profits. 

The  case  of  Oraham  vs.  Pierce,  19  Grat.,  28,  decided  Jan- 
uary 29,  1869,  supports  the  case  of  Early  vs.  Friend,  16  Grat., 
21,  cited  supra. 

In  the  case  of  Newman  vs.  Newman,  27  Grat.,  714,  decided 
September,  1876,  it  was  held:  B.  and  C.  are  joint  tenants  of  a 
furnace,  a  forge,  and  a  large  quantity  of  land,  derived  from  their 
father;  and  B.,  who  had  conducted  the  business  for  some  years 
in  the  lifetime  of  his  father,  continues  to  carry  it  on,  with  the 
assent  of  his  sister,  without  any  contract  with  C.  He  must  ac- 
count to  C.  for  her  share  of  the  benefits.  Though  there  were 
efforts  between  B.  and  C.  to  agree  upon  a  rent  which  should  be 
paid  by  B.  to  C.  for  her  half  of  the  property,  and  B.  seems  to 
have  thought  that  his  proposition  was  acquiesced  in,  and  did 
not  keep  such  accounts  as  he  should  have  kept,  so  as  to  enable 
him  to  render  the  account  of  profits  to  her,  yet  C.  is  entitled  to 
have  the  account  taken,  and  to  have  her  share  of  the  profits. 
B.,  having  been  allowed  all  his  expenses  in  carrying  on  the 
business,  including  $1,500  a  year  for  his  services  and  interest 
on  his  capital  employed  in  it  until  it  became  self-sustaining, 
and  then  being  allowed  by  the  decree  three-fifths  of  the  net 
profits,  he,  at  least,  cannot  complain  of  the  decree. 

In  the  case  of  Uuff  vs.  Tlirash,  75  Va.,  546,  decided  July 
26,  1881,  it  was  held :  Where  there  are  two  administrators  their 
relations  inter  se  are  fiduciary,  and  they  may  be  held  to  account, 
each  by  the  other,  in  a  court  of  equity,  touching  transactions 
between  themselves  connected  with  the  administration  of  the 
trust.  This  equitable  jurisdiction  extends  to  cases  of  account 
between  tenants  in  common,  joint  tenants,  partners,  and,  by 
analogy,  between  executors  and  administrators  who  have  a  joint 
and  entire  interest  in  the  effects  of  the  testator  or  intestate.  In 
all  cases  in  which  an  action  of  account  would  be  the  proper 
remedy  at  law,  and  in  all  cases  where  the  trustee  is  a  party,  the 
jurisdiction  of  a  court  of  equity  is  undoubted. 

In  the  case  of  Fry  et  aU.  vs.  Payne,  82  Va.,  759,  decided 
January  27,  1887,  it  was  held :  One  parcener  receiving  more  of 
the  rents  and  profits  than  his  share  is  liable  to  his  co-parceners 
in  an  action  of  account. 

CHAPTER    CLX. 

In  the  case  of  mil  vs.  SoutherlancCs  Executor,  Wythe's  Chan- 
cery Reports,  73,  decided  October,  1790,  it  was  held:  If  a 
debtor  who  owes  money  on  several  accounts  does  not,  at  the  time 
of  making  payments,  or  before,  direct  in  which  of  those  ac- 
counts they  shall  be  credited,  the  creditor  may  enter  the  credit 
in  either  account  he  pleases. 


720  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Lightfoot  vs.  Price,  4  H.  <fe  M.,  431,  decided  in 
the  Superior  Court  of  Chancery  for  the  city  of  Richmond,  1810^ 
it  was  held  that  payments  were  to  be  applied  first  to  the  pay- 
ment of  accrued  interest,  and,  if  the  payment  exceeds  the  inter- 
est, the  remainder  to  be  applied  to  the  reduction  of  the  princi- 
pal. Should  the  payment,  however,  fail  to  extinguish  the  ac- 
crued interest,  then  the  principal  may  not  be  increased,  as  that 
would  give  interest  upon  interest. 

In  the  case  of  Donally  vs.  Wilson,  5  Leigh,  329,  decided  April, 
1834,  it  was  held :  If  A.  owes  a  debt  to  B.,  payable  on  demand, 
for  which  C.  is  A.'s  surety,  and  A.  assigns  debts  of  others  to  B. 
in  part  payment,  and  after  such  assignment,  but  before  the 
assigned  debts  are  collected,  A.  contracts  another  debt  to  B., 
for  which  there  is  no  security ;  in  such  case  B.  cannot,  after  the 
collection  of  the  assigned  debts,  apply  the  same  to  the  payment 
of  A.'s  last  debt  contracted  after  the  assignment  was  made,  and 
recover  the  whole  amount  of  the  first  debt  from  C,  the  surety 
for  it. 

There  can  be  no  election  as  to  the  application  of  payments 
where  there  is  but  one  debt  due  at  the  time  of  the  payment 
made. 

In  the  case  of  Smith  vs.  Loyd,  11  Leigh,  512,  decided  Jan- 
uary, 1841,  it  was  held :  Where  one  is  indebted  to  another  for 
several  debts,  and  the  debtor  makes  payments  without  directing 
to  which  of  the  debts  they  shall  be  applied,  and  the  creditor 
makes  no  particular  application  of  the  payments  when  received, 
there  is  no  settled  rule  that  the  payments  shall  be  applied  either 
according  to  the  presumed  intention  of  the  debtor  or  that  the 
payments  shall  be  applied  in  the  manner  most  beneficial  to  the 
one  or  the  other,  but  it  devolves  upon  the  court  to  apply  the 
payments  according  to  the  justice  of  the  particular  case,  with  a 
view  of  all  its  circumstances.  In  general,  where  several  debts 
are  due,  and  payments  are  made  without  specific  appKcation 
by  either  debtor  or  creditor  at  the  time,  the  payments  ought  to 
be  applied  to  extinguish  the  debts  according  to  priority  of 
time. 

In  the  case  of  Miller  vs.  Trevillian,  2  Rob.,  1,  decided  April, 
1843,  it  was  held :  A  debtor  owing  a  debt  consisting  of  principal 
and  interest,  and  making  a  partial  payment,  has  a  right  to  direct 
its  application  to  so  much  of  the  principal,  to  the  exclusion  of 
the  interest,  and  the  creditor,  if  he  receives  it,  is  bound  to  apply 
it  accordingly. 

In  the  case  of  Vance  vs.  Monroe,  4  Grat.,  52,  1847.  M.  sells 
S.  a  tract  of  land,  for  the  purchase-money  of  which  he  takes 
three  bonds,  payable  in  one,  two  and  three  years,  and  he  takes 
a  deed  of  trust  on  the  land  to  secure  the  same.  When  the  first 
bond  becomes  due  he  sues  thereon  and  obtains  a  judgment  on 


Citations  to  the  Code  of  Virginia.  721 

•which  execution  is  issued  and  levied  on  the  property  of  S.,  who 
obtains  an  injunction  thereto,  which  is  afterwards  dissolved. 
M.  then  brings  an  action  on  the  injunction  bond  against  S.  and 
his  surety,  V. ;  and  pending  the  suit  the  land  is  sold  under  the 
deeds  of  trust,  and  purchased  at  a  price  not  quite  sufficient  to 
discharge  the  two  last  bonds  for  the  purchase-money,  which 
were  then  due.  After  the  sale  the  defendants  to  the  suit  on  the 
injunction  bond  insist  that  the  proceeds  of  the  sale  of  the  land 
should  be  first  applied  to  satisfy  the  judgment  obtained  on  the 
first  bond.  Held :  The  proceeds  of  the  sale  are  to  be  applied 
to  the  discharge  of  the  two  last  bonds,  leaving  the  judgment  on 
the  first  bond  in  full  force. 

In  the  case  of  RofiS  {Executor)  vs.  McLaxicKlari  s  Administra- 
tor, 7  Grat.,  86,  decided  May  14,  1850,  it  was  held:  A  debtor, 
by  four  bonds  payable  at  successive  periods,  makes  payments 
to  his  creditors,  which,  upon  a  settlement  after  the  death  of  the 
debtor,  are  ascertained  to  amount  to  more  than  a  sufficiency  to 
discharge  the  first  bond.  The  creditor  will  not  be  permitted  to 
apply  the  amount  remaining  after  discharging  the  first  bond  as 
a  credit  upon  the  fourth,  but  the  court  will  apply  it  to  the 
second  bond  in  relief  of  a  party  bound  as  surety  for  the  amount 
of  the  second  bond. 

A  creditor  by  two  judgments  and  a  bond  files  a  biU  against 
the  executor  of  his  debtor,  and  obtains  a  personal  decree  against 
the  executor  for  the  whole  amount.  Upon  an  execution  which 
issued  upon  this  decree,  a  part  of  the  money  is  made.  The 
judgments  being  debts  of  highest  dignity,  the  money  so  made  is 
to  be  applied  as  a  credit  upon  them  in  relief  of  a  party  who  is 
bound  as  a  surety  for  the  judgments. 

In  the  case  of  Schofield  vs.  Cox  et  als.,  8  Grat.,  533,  decided 
January,  1852.  A.  owns  a  tract  of  land  on  which  there  is  a 
deed  of  trust  to  secure  a  large  debt.  A.  sells  two-thirds  of  the 
land  to  B,  and  for  the  purchase-money  takes  from  B.  eleven 
bonds  payable  at  successive  periods,  and  a  deed  of  trust  upon 
the  property  sold  to  secure  them.  A.  assigns  to  C.  the  fifth, 
sixth,  and  seventh  bonds  due,  and  B.  pays  to  A.  either  before 
the  assignment  or  afterwards,  without  notice  of  it,  rather  more 
than  to  discharge  the  first  four  bonds,  and  then  A.  and  B.  be- 
come insolvent.  Held :  That  C.  as  assignee  of  A.  is  entitled  as 
between  him  and  A.  to  the  benefit  of  the  deed  of  trust  given  by 
B.  to  secure  the  payment  of  his  bonds. 

That  C.  is  entitled  to  have  one-third  of  the  land  not  em- 
braced in  his  security  applied  in  the  first  place  to  satisfy  the 
first  encumbrance,  to  the  relief  of  the  two-thirds  of  the  land 
conveyed  by  B.  to  secure  his  bonds. 

That  the  payments  beyond  the  amount  of  the  first  four  bonds, 
made  by  B.  to  A.,  without  notice  of  the  assignment,  having  been 
46 


722  Citations  to  the  Code  of  Virginia. 

made  on  account,  are  not  so  treated  as  applicable  to  the  first 
bond  assigned  to  C,  but  to  the  bonds  held  by  A. 

In  the  case  of  Ho'ward  etals.  vs.  McCall  [Administrator  for, 
etc.),  21  Grat.,  205,  decided  June,  1871,  it  was  held :  The  debtor 
not  having  directed  the  application  of  the  payment,  it  was  the 
right  of  the  creditor  to  apply  it  to  the  first  bond ;  and  if  neither 
had  applied  it,  the  law  woiild  apply  it  to  the  first  bond  due,  and 
it  is  to  be  presumed  that  it  was  so  applied. 

In  the  case  of  McClintic  vs.  Wise's  Aduxinistrators  et  als.,  25 
Grat.,  448,  decided  September,  1874.  W.  sold  land  to  M.,  re- 
taining the  title,  for  four  thousand  one  hundred  dollars ;  cash  one 
thousand  dollars,  and  three  bonds  payable  January  1, 1858, 1859, 
and  1860.  The  first  was  paid  to  W.  He  transferred  the  bond 
due  January  1,  1860,  to  S.  in  May,  1859,  who  assigned  it  to  H. 
W.  died  in  possession  of  the  bond  due  January,  1879.  His 
administrators  sued  M.  in  equity  to  subject  the  land  to  pay  the 
bond  held  by  W.  at  his  death  -wdthout  making  S.  or  H.  a  party, 
and  the  land  was  sold  by  a  commissioner  to  J.  for  two  thousand 
dollars,  and  the  sale  was  confirmed,  and  the  commissioner  was 
directed  to  collect  the  money  and  pay  the  plaintifts.  H.  upon 
his  petition  is  made  a  defendant  in  the  suit,  and  files  his  answer, 
claiming  that  his  bond  is  still  unpaid,  and  that  he  is  entitled  to 
priority  of  payment  out  of  the  land.  The  administrators  file  an 
answer,  insisting  that  H.  had  lost*  his  right  to  subject  the  land 
by  his  laches  in  not  suing  M.,  who  had  in  the  meantime  become 
insolvent.  The  decree  gives  priority  to  the  plaintiffs  over  H., 
and  he  appeals.  Held:  The  bond  held  by  H.  having  been 
transferred  by  W.  in  his  lifetime,  though  due  after  the  bond  re- 
tained by  him,  is  to  be  first  paid  out  of  the  proceeds  of  the  sale 
of  the  land. 

In  the  case  of  Chapman  vs.  Cominonwealth,  25  Grat.,  721,  de- 
cided January  21,  1875,  it  was  held :  The  debtor  may  direct  the 
application  at  or  before  the  time  of  making  such  payment,  and 
such  direction  may  be  given  directly  or  expressly,  or  by  impli- 
cation. 

If  the  debtor  gives  no  such  direction,  according  to  his  pleasure, 
he  may  make  it  either  at  the  time  of  the  payment  or  after- 
wards, before  the  commencement  of  any  controversy  on  the  sub- 
ject, but  after  he  has  once  made  the  application  he  cannot 
change  it  to  another  without  the  consent  of  all  the  parties  con- 
cerned. 

Such  application  by  a  creditor  may  also  be  made  either  ex- 
pressly or  by  implication.  If  he  enters  the  debits  and  credits  in 
a  general  account  as  they  occur,  this  will  be  considered,  in  the 
absence  of  evidence  to  the  contrary,  as  a  general  application  of 
the  credits  to  the  debts  in  the  order  of  time  in  which  the  debts 
occur,  thus  paying  the  debt  first  due. 


Citations  to  the  Code  of  Virginia.  723 

If  neither  the  debtor  nor  the  creditor  make  the  application, 
then  the  law  will  make  it  according  to  the  circumstances  of  each 
case,  and  if  there  be  no  other  controlling  circumstance  the  ap- 
plication will  be  made  according  to  the  order  of  time,  paying 
first  the  oldest  debt.  But  if  the  debts  be  due  by  a  collector  or 
other  receiver  of  public  money,  under  bonds  with  different  sets 
of  sureties,  then  the  law  will  so  apply  the  payments,  if  possible, 
as  that  the  money  collected  under  one  bond  shall  be  applied  to 
the  relief  of  the  sureties  in  that  bond ;  and  the  creditor  in  such 
case,  if  he  be  informed  as  to  the  source  from  which  the  money 
with  which  a  payment  may  have  been  made  was  derived,  cannot 
apply  it  otherwise,  even  with  the  consent  or  by  direction  of  the 
principal  debtor. 

In  the  case  of  Fultz  vs.  Davis,  26  Grat,,  903,  decided  Decem- 
ber 2,  1875,  it  was  held :  Where  payments  are  made  from  time 
to  time  on  a  debt  bearing  interest,  the  interest  is  to  be  computed 
on  the  debt  up  to  the  time  of  payment,  and  the  payment  is  to 
be  deducted  from  tjie  amount,  principal  and  interest.  It  is  error 
to  compute  interest  on  payments  to  a  future  day  when  the  debt 
is  paid  or  settlement  made,  and  then  credit  the  payment  and 
interest  upon  the  debt,  principal  and  interest. 

In  the  case  of  Gordon  vs.  Fitzhugh  et  als.,  27  Grat.,  835,  de- 
cided November,  1876.  K.  made  a  deed  to  F.  conveying  a  tract 
of  land  in  tnist  to  secure  the  purchase-money  of  the  land,  evi- 
denced by  five  bonds,  payable  at  different  periods  to  R.,  the 
vendor.  R.  first  assigned  the  bond  payable  second  in  date  to 
M.,  next  he  assigned  the  bond  first  payable  to  McG.,  and  after- 
wards he  assigned  the  last  three  to  G.  The  land  when  sold  did 
not  produce  sufficient  to  pay  all  the  bonds.  Held:  The  bond 
assigned  to  McG.,  the  first  assignee,  is  to  be  first  paid ;  then  the 
bond  assigned  to  M.,  the  second  assignee,  and  the  balance  if  any, 
is  to  be  paid  to  G.,  the  last  assignee. 

See  the  case  of  Gruhhs  vs.  Wysors,  32  Grat.,  127,  cited  ante, 
Section  2860. 

In  the  case  of  Lingle  et  als.  vs.  Cook's  Administrator,  32  Grat., 
262,  decided  September,  1879,  it  was  held:  Where  a  debtor 
owes  various  debts  to  the  same  creditor,  and  makes  a  payment, 
the  application  of  the  payment  may  be  made  by  himself  at  the 
time  he  makes  it,  and  if  he  fail  then  to  make  it,  the  application 
may  be  made  by  the  creditor,  and  if  he  fails  to  make  it,  the 
court  before  which  the  transaction  comes  may  direct  it  to  be 
made  according  as  may,  in  the  judgment  of  the  court,  appear 
to  be  equitable  and  just  under  all  the  circumstances  of  the 
case. 

In  the  case  of  Coles  vs.  ^M,thers  et  als.,  33  Grat.,  186,  decided 
April,  1880.  In  1852  C.  sold  to  M.  a  tract  of  land  for  $3,564, 
for  which  she  took  his  bond,  and  reserved  a  lien  on  the  face  of 


724  Citations  to  the  Code  of  Virginia. 

the  deed  given  M.,  which  was  duly  recorded.  Between  the  sale 
in  1852,  and  December,  1855,  there  were  other  transactions  be- 
tween C.  and  M.,  by  which  the  latter  became  indebted  to  the 
former  (inclusive  of  the  purchase-money  for  the  land)  ^10,- 
630.50,  and  for  which  he  executed  his  bond,  with  two  personal 
sureties,  and  the  bond  for  13,564  was  suiTendered.  M.  died  in 
1856,  leaving  his  whole  property  to  his  wife  L.,  who  was  a 
sister  of  C.  L.,  the  widow,  soon  married  W.,  and  in  18(;3  W. 
and  wife  conveyed  the  land  purchased  of  C.  with  other  lands  to 
H.,  made  him  a  deed  and  put  him  in  possession.  On  October 
19,  1866,  the  balance  due  on  the  $10,630.50  bond  was  $4,123, 
for  which  W.,  who  was  the  representative  and  had  married  the 
widow  of  M.,  gave  his  bond,  got  possession  of  the  $10,630.50 
bond,  and  confessed  a  judgment  for  the  $4,123  in  favor  of  C, 
which  he,  W.,  alleges  was  in  lieu  of  the  bond  which  he  got  pos- 
session of.  W.  soon  went  into  bankruptcy  and  paid  but  a  small 
portion  of  the  judgment.  C.  denies  the  statement  of  W.  about 
his  possession  of  the  bond,  and  there  is  nothing  in  the  record 
to  certainly  show,  or  to  show  that  she  ever  intended  to  release 
the  lien  reserved  in  the  deed  to  M.  H.  denies  all  knowledge  of 
the  reserved  lien  at  the  time  of  the  purchase  and  until  a  long 
time  thereafter.  There  was  nothing  done  by  C.  to  induce  H. 
to  beheve  that  she  had  waived  her  lien,  or  to  influence  his  con- 
duct in  any  way.  On  a  bill  filed  by  C.  against  H.,  and  W.  and 
wife  in  1871,  to  enforce  the  lien  for  the  purchase-money  then 
due  on  the  land  sold  by  C.  to  M.,  and  afterwards  by  W.  and 
wife  to  H.,  held :  As  to  the  payments  made  on  the  bond  for 
$10,630.50,  H.  insisted  that  they  should  be  first  applied  to  ex- 
tinguish the  purchase-money  bond  of  $3,564,  and  that  was 
therefore  extinguished.  Held :  H.,  being  not  one  of  the  origi- 
nal parties  to  the  bond,  has  no  right  to  insist  how  payments 
shall  be  appropriated,  that  being  a  right  existing  only  between 
those  parties,  and  whilst,  as  a  rule,  where  there  are  two  debts, 
one  secured  and  the  other  not,  the  courts  will  apply  the  pay- 
ments to  the  unsecured  debts,  yet,  as  no  general  rule  applicable 
to  every  case  can  be  adopted  without  the  greatest  hardship,  if 
neither  party  has  made  the  application,  according  to  what  it 
deems  right  and  proper  in  each  case,  and  in  this  case  the  pay- 
ments should  be  applied  pro  rata  to  all  of  the  debts  due 
toC. 

In  the  case  of  Magarity  vs.  Shipman,  11  Va.  Law  Journal, 
214,  decided  January  20,  1887,  it  was  held:  When  no  applica- 
tion of  a  payment  by  a  debtor  has  been  made  by  either  party, 
the  creditor  cannot  complain  of  the  action  of  the  court  in  apply- 
ing them  to  a  secured  debt  which  is  undisputed  and  is  prior  to 
and  bears  a  higher  rate  of  interest  than  another  and  an  unse- 
cured debt. 


Citations  to  the  Code  of  Virginia.  725 

Section  3295. 

In  the  case  of  JB aulhrier'' s  Administrator  vs.  Broclceiibrough, 
4  Rand.,  245,  decided  May,  1826,  it  was  held:  Where  it  is 
stipulated  in  a  mortgage  that  money  shall  be  paid  on  or  before 
a  certain  day,  and  it  is  paid  after  that  day,  the  mortgagee  is 
not  deprived  of  his  right  of  action  at  law  on  the  mortgage.  The 
acceptance  of  the  money  by  the  mortgagee  after  the  day  ap- 
pointed for  payment  does  not  change  the  rights  of  the  party  at 
law. 

Section  3298. 

In  the  case  of  Scott  vs.  Alexander  (&  Peterfield  Trent,  1  Wash., 
77,  decided  at  the  spring  term,  1792,  it  was  held:  A  debt  due 
from  an  individual  partner  cannot  be  set  off  against  a  partner- 
ship debt. 

In  the  case  of  White,  Whipple  &  Co.  vs.  Bannister^s  Ex- 
ecviors,  1  Wash.,  166,  decided  at  the  spring  term,  1793,  it  was 
held :  A  set-off  is  improper  as  against  rent  due  testator's  estate, 
though  a  bill  in  chancery  to  restrain  the  execution  of  a  judg- 
ment for  the  rent  may  be  treated  as  an  original  bill  of  discov- 
ery of  assets ;  and  after  such  discovery,  if  the  estate  be  solvent, 
then  the  set-off  will  be  proper. 

In  the  case  of  Browns  Administratrix  vs.  Garland  et  als.,  1 
Wash.,  221,  decided  at  the  fall  term,  1794.  The  administratrix 
had  advertised  a  discount  of  five  per  cent,  to  all  creditors  of  the 
decedent  who  should  purchase  any  of  the  property  of  decedent, 
and  the  defendant  offered  this  as  evidence  of  the  solvency  of 
the  estate,  to  support  a  plea  of  set-off  against  a  bond  given  by 
said  defendant  to  the  plaintiff  as  administratrix;  and  the  de- 
fendant thereunder  offered  two  bonds  given  by  the  decedent. 
Held :  The  defendant,  not  being  a  purchasing  creditor,  cannot 
claim  under  this  offer,  and  without  this  there  is  no  doubt  of  the 
admission  of  the  set-off  being  improper. 

In  the  case  of  Rose  vs.  Murchie,  2  Call,  409  (2d  edition,  344), 
decided  October  25,  1800.  A.,  being  indebted  to  D.,  F.  &  Co. 
by  bond,  died;  and  at  the  sale  of  his  estate  by  his  executors, 
r.,  the  acting  partner  of  D.,  F.  &  Co.,  bought  a  slave,  which  he 
carried  to  his  own  plantation,  and  there  kept  him.  The  amount 
of  the  purchase  for  the  slave  was  held  a  good  discount  against 
the  bond.  (In  this  case  the  rule  that  a  private  debt  of  a  part- 
ner cannot  be  set  off  against  a  debt  due  the  company  does  not 
apply.) 

In  tlie  case  of  Dan/jerfield  vs.  Baylor's  Administrator,  1 
Munf.,  520,  decided  November  27,  1810,  it  was  held:  A  debtor 
ought  not  to  be  allowed  a  set-off  (even  in  equity)  for  unliquid- 
ated and  disputed  claims  against  his  creditor  purchased  by  him 
after  suit  brought  by  the  creditor  against  him. 


726  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Ritchie  &  Wales  vs.  Moore,  5  Munf.,  388,  de- 
cided February  4,  1817,  it  was  held:  In  an  action  against  a 
commercial  company,  a  set-off  of  a  debt  due  to  an  individual 
partner  cannot  be  allowed. 

In  the  case  of  Porter  vs.  Nekervis,  4  Rand,  359,  decided  June, 
1826,  it  was  held:  Joint  and  separate  demands  cannot  be  set 
off  against  each  other;  nor  can  partnership  and  separate  de- 
mands be  set  off  against  each  other. 

In  the  case  of  Webster  vs.  Couch,  6  Rand,  519,  decided  Octo- 
ber, 1828,  it  was  held :  Unliquidated  damages  for  a  substantive 
injury  cannot  be  set  off  either  at  law  or  in  equity  against  a  legal 
demand. 

In  the  case  of  CabelVs  Executor  vs.  Roberts's  Administrator,  6 
Rand.,  580,  decided  November,  1828,  it  was  held:  Court  of 
equity  will  not  interfere  with  judgment  at  common  law  where 
matters  of  set-off  could  have  been  introduced  by  common  law 
methods. 

In  the  case  of  Gilliat  vs.  Lynch,  2  Leigh,  493,  decided  Feb- 
ruary, 1831,  it  was  held :  Against  a  debt  due  by  A.  and  B. 
jointly  to  C,  a  due  debt  by  C.  to  B.  alone  cannot  be  set  off  in 
equity  any  more  than  at  law. 

In  the  case  of  Feazle  vs.  Dillard,  5  Leigh,  30,  decided  Jan- 
uary, 1834.  Feazle  is  indebted  to  Dillard  by  bond  payable 
January,  1820,  which,  after  it  is  due,  is  assigned  by  Dillard  to 
Campbell;  but  before  notice  of  assignment,  Feazle  becomes 
surety  for  Dillard  in  a  bond  to  Burd,  payable  February  22, 
1822.  Dillard  becomes  insolvent.  Held  :  Feazle  is  entitled  in 
equity  to  set  off  the  amount  of  the  bond  in  which  he  is  Dillard's 
surety  to  Burd,  though  not  yet  due  (unless  he  is  indemnified 
against  his  suretyship)  against  his  own  bond  to  Dillard  in  the 
hands  of  Campbell,  the  assignee.  But  he  may  waive  this  equity 
as  against  the  assignee  by  his  own  conduct. 

In  the  case  of  PaUiam  vs.  Wiiiston,  5  Leigh,  324,  decided 
April,  1834,  it  was  held :  An  obligor  in  a  bond  given  to  one  as 
administrator  of  an  estate  cannot  offset  debts  due  him  from 
the  administrator  individually  against  the  demand  on  the  bond, 
either  at  law  or  in  equity  ;  nor  can  he  set  off  debts  due  him  from 
the  intestate,  nor  his  claim  as  one  of  the  distributees  of  the  in- 
testate's estate,  since,  to  allow  such  set-offs,  would  involve  the 
necessity  of  taking  an  account  of  the  assets  in  every  case  in 
which  the  administrator  asserts  a  demand  on  behalf  of  the 
estate,  and  might  subject  the  administrator  to  a  devastavit  if  a 
mistake  should  be  made. 

In  the  case  of  Clopton  {Administrator)  vs.  Morris  et  at.,  6  Leigh, 
278,  decided  April,  1835.  N.,  holding  bonds  of  C.  for  $40,000, 
payable  at  a  future  day,  assigns  them  to  B.  and  M.,  and  then 
becomes  insolvent ;  S.  holds  a  bond  of  N.  to  him  for  $2,247  on 


Citations  to  the  Code  of  Virginia.  727 

demand ;  after  N.'s  assignment  of  C.'s  bonds  to  M.  and  B.,  but 
before  C.  lias  notice  of  such  assignment,  an  agreement  is  made 
between  C.  and  S.  whereby  S.  assigns  N.'s  bond  held  by  liim  to 
C,  and  C.  gives  liis  note  to  S.  to  pay  him  the  amount  thereof 
six  months  after  the  date  when  C.'s  bonds  to  N.,  assigned  to  M. 
and  B.,  were  to  fall  due;  at  the  time  of  this  agreement  between 
C.  and  S.  they  were  both  apprised  of  N.'s  insolvency,  and  their 
purpose  was  to  save  to  S.  the  debt  which  N.  owed  him,  if  by 
this  means  it  could  be  saved ;  and  it  was  understood  between 
them  that,  if  S.'s  assignment  of  N.'s  bond  to  C.  should  turn  out 
not  to  be  a  legal  one,  or  if,  by  reason  of  any  law  unknown  to 
either  party,  C.  should  be  unable  to  set  off  N.'s  bond  assigned 
to  him  by  S.  against  his  own  bonds  to  N.  assigned  to  M.  and 
B.,  then  neither  C.  should  have  recourse  against  S.  on  his  con- 
tract of  assignment,  nor  S.  have  recourse  against  C.  on  his  note 
for  the  contents  of  N.'s  bond  assigned  by  S.  to  him.  In  an  ac- 
tion b}^  M.  and  B.  against  C.  on  his  bonds  assigned  by  N.  to 
them,  it  was  held :  C.  is  entitled  to  set  off  N.'s  bond  to  S.  as- 
signed by  S.  to  C. 

In  the  case  of  Craigeris  Executrix  vs.  Lobh,  12  Leigh,  627, 
decided  August,  1841,  it  was  held :  Though  no  action  lies  for 
clerk's  fees  till  they  shall  be  put  into  an  officer's  hands  for  col- 
lection, and  he  has  returned  that  they  cannot  be  levied  by  dis- 
tress, yet  the  clerk  may  set  them  off  against  an  action  on  his 
bond  to  the  party  from  whom  they  are  due. 

In  the  case  of  Taylor  s  Administrator  vs.  Spindle,  2  Grat.,  44, 
decided  April,  1845.  A  vendee  of  land  being  entitled  to  an 
abatement  from  the  amount  of  the  purchase-money  for  the  fail- 
ure of  the  vendor  to  put  him  in  possession  of  part  of  the  land 
at  the  time  specified  in  the  contract,  and  the  vendee  afterwards 
becoming  insolvent,  and  the  land  being  sold,  and  the  vendor 
having  assigned  the  bonds  for  the  purchase-money  and  removed 
from  the  State,  the  assignee  of  one  of  the  bonds,  having  obtained 
a  judgment  against  the  vendee  before  the  conveyance  by  him  of 
the  land,  comes  into  equity  to  enforce  satisfaction  of  his  judg- 
ment out  of  the  lands  in  the  hands  of  the  purchasers.  Held :  The 
purchasers  are  entitled  to  set  off  the  amount  to  which  the  vendee 
is  so  entitled  against  the  purchase-money  yet  due.  If  the  vendee 
paid  a  part  of  the  purchase-money  to  the  vendor,  or  to  a  subse- 
quent assignee,  with  notice  of  a  prior  assignment  of  one  of  the 
bonds,  the  purchaser  can  only  set  off  against  such  prior  as- 
signee the  balance  due  to  the  vendee,  the  amount  so  paid  by 
him.  If  two  or  more  of  the  bonds  for  the  purchase-money  are 
unpaid,  the  claim  of  the  vendee  should  be  first  applied  to  the 
discharge  of  those  last  assigned,  and  only  the  balance  remain- 
ing after  their  discharge  is  a  good  set-off  against  the  first  as- 
signee.    If  the  bonds  were  still  in  the  hands  of  the  vendor,  or 


728  Citations  to  the  Code  of  Virginia. 

if  the  assignment  thereof  was  a  cotemporaneous  act,  and  a 
judgment  binding  the  lands  of  the  debtor  has  been  obtained  on 
one  of  the  bonds,  and  no  such  judgment  has  been  obtained  on 
the  others,  the  claim  of  the  vendee  shall  not  be  set  off  against 
the  judgment  binding  the  land,  except  for  the  balance  of  said 
claim,  after  discharging  the  other  bonds. 

In  the  case  of  \Vayla7id  vs.  Tucker  et  als.,  4  Grat.,  267,  de- 
cided January,  1848.  The  principal  and  two  sureties  in  a  bond 
became  insolvent,  and  the  other  surety  paid  the  debt.  Previous 
to  this  payment  the  solvent  surety  had  executed  his  bond  for 
less  than  half  the  amount  of  the  first-named  bond  to  one  of  his 
co-sureties,  who  had  conveyed  it  in  trust  for  his  creditors. 
After  the  payment  of  the  first-mentioned  debt  by  the  solvent 
surety,  judgment  was  recovered  against  him  on  his  own  bond, 
and  he  then  enjoined  the  judgment,  claiming  to  offset  it  by  his 
co-surety's  portion  of  the  debt  that  he  had  paid.  Held :  He 
is  entitled  in  preference  to  the  assignee  of  his  bond.  He  is 
entitled  to  relief  in  equity,  notwithstanding  the  judgment  at 
law. 

In  the  case  of  Trhnyer  vs.  Pollard,  5  Grat.,  460,  decided 
January,  1849,  it  was  held :  Where  a  defendant  does  not  file  a 
plea  of  set-off,  but  files  his  account  and  gives  notice  of  set-off, 
the  plaintiff  cannot  reply  the  statute  of  limitations,  and  he  is 
therefore  at  liberty  to  rely  upon  it  in  evidence. 

In  the  case  of  Hupp  vs.  Hxipp,  6  Grat.,  310,  decided  July, 
1849.  H.  k  N.  are  merchants  and  partners.  H.  sells  out  to  M., 
and  the  new  firm  undertakes  to  pay  the  debts  of  the  first.  H. 
becomes  indebted  to  the  new  firm,  for  which  he  executes  his 
bond  with  two  sureties,  and  this  bond  is  assigned  for  value 
to  A.  The  new  firm  afterwards  fails,  and  the  partners  are  in- 
solvent, leaving  debts  of  the  old  firm  unpaid  to  a  larger  amount 
than  the  bond  of  H.,  and  H.  pays  them.  Held :  H.  is  entitled 
to  equity  to  set-off  against  his  bond  in  the  hands  of  the  assignee 
the  debts  of  the  old  concern  of  H.  &  N.,  which  M.  &  N.  were 
bound  to  pay,  and  which  H.  had  paid. 

In  the  case  of  McCUUan  vs.  Kinnaird,  6  Grat.,  352,  decided 
October,  1849,  it  was  held:  Judgment  on  a  forthcoming  bond 
enjoined  at  the  suit  of  the  surety,  on  the  ground  that  he  had  an 
action  pending  against  the  plaintiff  in  the  judgment  for  a  larger 
amount,  and  that  the  plaintiff  was  insolvent. 

In  the  case  of  Minor  vs.  Minor's  Administrator,  8  Grat.,  1, 
decided  July,  1851,  it  was  held :  The  count  in  an  action  of 
assumpsit  by  an  administrator  is  for  money  had  and  received, 
and  the  bill  of  particulars  merely  states  an  account  in  which 
the  defendant  is  debtor  to  the  administrator  for  money  re- 
ceived, stating  a  sum  certain.  The  count  and  the  bill  of  par- 
ticulars are  not  sufficient  to  admit  proof  of  an  admission  by  the 


Citations  to  the  Code  of  Virginia.  729 

defendant  that  he  had  received  from  a  third  person  a  sum  cer- 
tain belonging  to  the  estate  of  the  plaintiff's  intestate. 

In  the  case  of  Bell  vs.  Craioford,  8  Grat.,  110,  decided  July, 
1851,  it  was  held :  In  assumpsit  defendant  pleads  non-assumpsit, 
and  with  it  files  affidavit  of  set-off  and  the  set-off,  which  is  a 
note.  Though  there  is  no  plea  of  set-off  or  bill  of  particulars, 
the  evidence  in  relation  to  the  set-off  is  properly  admitted. 

In  the  case  of  Glazebrook's  Administrator  vs.  Ragland^s  Ad- 
ministrator, 8  Grat.,  332,  decided  October,  1851.  A  deed  of 
trust  by  husband  in  favor  of  himself  and  wife  was  not  duly  re- 
corded, but  the  land  was  sold  by  the  trustee  und«r  a  decree  of 
the  court  in  a  friendly  suit  by  the  cestui  qiie  trust  against  the 
trustee,  and  conveyed  to  the  purchaser  by  deed  duly  recorded. 
Years  afterwards,  hut  before  all  the  purchase-money  was  paid, 
the  purchaser  became  the  surety  of  the  husband  in  a  forthcom- 
ing bond,  and  was  compelled  to  pay  the  money.  In  an  action 
on  the  bond  for  the  purchase-money  by  the  trustee  against  the 
administratrix  of  the  purchaser,  she  pleaded  as  a  set-off  the  debt 
paid  by  the  purchaser  as  surety  of  the  husband.  Held :  That 
though  the  deed  of  trust  was  not  duly  recorded,  yet  under  the 
circumstances  it  was  valid,  and  neither  the  purchase-money  nor 
the  land  was  liable  for  the  husband's  debts.  The  deed  of  trust 
being  valid,  the  interest  of  the  husband  in  the  tmst-subject  is  a 
joint  interest,  and  therefore  cannot  be  set  off  by  a  debt  due  from 
himself. 

In  the  case  of  Biceps  Emcutor  vs.  An)iatt's  Ad?ninistrator,  8 
Grat.,  557,  decided  April,  1852,  it  was  held:  Where  the  de- 
fendant relies  upon  a  specific  payment  or  set-off  by  way  of  dis- 
count against  a  debt,  an  account  stating  distinctly  the  nature  of 
such  payment  or  set-off,  and  the  several  items  thereof,  must  be 
filed  with  the  plea,  though  the  defendant  may  rely  upon  the 
parol  admissions  of  the  plaintiff  to  prove  such  payment.  But 
this  is  not  necessary  where  no  specific  payment  is  relied  on ;  but 
the  defendant  offers  proof  of  the  admissions  of  the  plaintiff  that 
but  a  portion  of  the  debt  is  due. 

In  the  case  of  Hudson  vs.  Kli7ie,  9  Grat.,  379,  decided  Sep- 
tember 3,  1852,  it  was  held:  If  the  claims  which  he  holds 
against  the  plaintiffs  at  law  are  only  recroverable  in  equity,  still 
he  is  not  entitled  to  enjoin  the  judgment,  and  to  have  them  set 
off  against  it. 

In  the  case  of  Ragsdale  vs.  Ilagy  et  als.,  9  Grat.,  409,  decided 
September  6,  1852,  it  was  held:  A  vendee  of  land  being  en- 
titled to  come  into  equity  to  enjoin  a  judgment  recovered  by  an 
assignee  on  a  bond  given  for  the  purchase-money,  on  the  ground 
of  difficulties  in  the  title,  and  it  being  doubtful  whether  he  can 
get  a  title,  though  the  title  is  decreed  to  him  in  his  suit,  he  is 
entitled  to  set  up  in  equity  offsets  he  held  against  his  vendor 


730  Citations  to  the  Code  of  Virginia. 

prior  to  the  assignment;  and  he  is  not  bound  to  plead  them  at 
law ;  and  this  especially  as  one  of  the  offsets  arose  out  of  the 
contract  of  sale,  and  another  was  only  an  equitable  oifset  at  the 
time  of  the  assignment. 

In  the  case  of  Perkins  (Administratof)  vs.  Hawkins  {Adminis- 
trator), 9  Grat.,  649,  decided  February  24,  1853,  it  was  held: 
Defendant  may  have  leave  to  file  an  additional  account  of  set- 
offs when  it  will  not  produce  delay  to  the  plaintiffs  and  it  is 
necessary  to  attain  the  justice  of  the  case.  And  if  the  plaintiff 
obtains  leave  to  amend  his  declaration,  as  defendant  is  entitled 
to  a  continuance,  there  can  be  no  objection  to  filing  the  account 
on  the  ground  of  delay. 

In  the  case  of  George  vs.  Strang^ s  Executor,  10  Grat.,  499, 
decided  October,  1853,  it  was  held :  An  injunction  to  a  judg- 
ment at  law  to  set  up  payments  or  offsets  which  he  might  have 
pleaded  at  law,  and  if  a  discovery  was  necessary  to  enable  him 
to  prove  them,  he  should  have  filed  his  bill  of  discovery  in  aid 
of  his  defence  at  law,  or  he  should  have  filed  interrogatories  to 
the  plaintiff  under  the  statute. 

In  the  case  of  Davis  vs.  Miller,  14  Grat.,  1,  decided  April 
11, 1857,  it  was  held:  A  set-off  as  between  the  maker  and  payee, 
acquired  after  the  transfer  of  an  overdue  note,  though  acquired 
without  notice  of  the  transfer  of  the  note,  cannot  be  set  off 
against  the  holder. 

By  the  endorsement  of  negotiable  notes,  though  after-due, 
the  legal  title  passes  without  notice  to  the  maker.  But  in  the 
case  of  transfers  of  choses  in  action  not  negotiable,  only  the 
equitable  title  passes,  and  the  maker  may  make  payments  to  the 
payee  or  obligee  until  he  has  notice  of  the  transfer. 

In  the  case  of  Allen  et  als.  vs.  Hart,  18  Grat,,  722,  decided 
April,  1868,  it  was  held :  The  defence  of  set-off  is  admissible  in 
a  motion  upon  a  forthcoming  bond  taken  on  a  warrant  of  distress. 

In  the  case  of  Exchange  Bank  of  Yirginia  vs.  Knox,  19  Grat., 
739,  decided  May  25,  1870.  Under  the  act  requiring  the  banks 
of  the  Commonwealth  to  go  into  liquidation,  the  banks  being 
insolvent  execute  deeds  conveying  all  their  property,  including 
debts  due  to  them,  to  trustees  for  the  payment  of  their  debts. 
Held:  Though  the  charter  of  the  banks  requires  them  to  take 
their  notes  in  payment  of  debts  due  to  them,  this  does  not 
authorize  debtors  of  the  banks  to  pay  their  debts  with  the  notes 
of  the  banks  bought  up  after  the  execution  and  recording  of  the 
deeds. 

In  the  case  of  Saunders,  etc.,  vs.  White  et  als.,  20  Grat.,  327, 
decided  January,  1871,  it  was  held:  The  principles  decided  in 
the  cases  of  Exchange  Bank  of  Yirginia  for  Gamp  [Trustee), 
etc.,  vs.  Knox,  etc.,  and  Farmers'  Bank  of  Yirginia  for  Goddin, 
etc.,  vs.  Anderson  (&  Go.,  19  Grat,,  739,  reaffirmed. 


Citations  to  the  Code  of  Vikginia.  731 

In  the  case  of  James  et  als.  vs.  Johnson,  22  Grat.,  461,  decided 
July  18, 1872,  it  was  held :  In  a  suit  upon  a  bond  given  by  M.  and 
others  to  the  person  who  was  administrator  of  the  estate  of  their 
intestate  for  the  amount  due  him  upon  a  settlement,  they  can- 
not set  off  moneys  subsequently  received  by  him  as  adminis- 
trator, the  claims  not  being  in  the  same  character. 

Though  the  administrator  has  made  a  statement  of  assets  re- 
ceived and  payments  made  by  him  since  the  bond  was  given, 
and,  finding  a  balance  of  the  estate  in  his  hands,  endorses  it  as 
a  credit  upon  the  bond,  yet  as  the  obligors  do  not  acquiesce  in 
that  statement,  they  are  not  to  be  allowed  the  credit  endorsed, 
but  the  balance  due  by  the  administrator  must  be  ascertained 
by  a  correct  settlement  of  his  administration  account. 

The  bond  bears  date  on  the  14th  of  May,  1863,  and  is  pay- 
able on  demand,  and  the  balance  found  due  to  the  administra- 
tor at  that  date  is  almost  wholly  made  up  of  his  commissions 
on  receipts  and  disbursements  prior  to  the  15th  day  of  Novem- 
ber, 1862.  The  bond  having  been  given  with  reference  to  the 
Confederate  States  treasury  notes  as  a  standard  of  value,  is  to  be 
scaled  as  of  its  date. 

In  the  case  of  Whurtman  et  als.  vs.  Yost,  22  Grat.,  595,  de- 
cided September  11,  1872.  Y.  brings  an  action  of  debt  upon  a 
bond  against  W.  and  two  others,  W.  being  the  principal  in  the 
bond.  The  defendants  seek  to  set  off  a  judgment  recovered  by 
P.  against  Y.,  which  has  been  assigned  to  W.  Held:  Under 
the  statute  the  judgment  is  a  good  set-oif  to  the  bond,  though 
the  debt  sued  for  is  against  W.  and  two  others,  and  the  judg- 
ment is  assigned  to  W.,  and  though  the  plaintiff's  claim  is  legal 
and  the  claim  of  W.  is  equitable. 

See  the  case  of  Chapman  et  als.  vs.  The  Commonwealth,  25 
Grat.,  721,  cited  ante.  Chapter  160. 

In  the  case  of  Huffmans  vs.  Walker,  26  Grat.,  314,  decided 
June  30,  1875.  W.  brings  debt  on  a  bond  against  H.,  and  H. 
pleads  payment  and  set-off,  on  which  there  is  a  re-issue.  H.  files 
with  his  plea  a  statement  of  the  payment  which  was  the  amount 
of  a  bond  of  W.  and  J.  to  S.,  and  that  W.  agreed  with  H.  if  H. 
would  pay  the  bond  due  to  S.,  H.  should  have  credit  for  the 
amount  as  a  payment  on  the  bond  sued  on.  Held:  H.  is  a 
competent  witness  to  prove  what  passed  between  himself  and  J. 
in  relation  to  the  arrangement  between  him  and  J.  for  the  pro- 
curement, and  D.,  that  F.  would  take  in  payment  of  his  debt  any 
debt  on  W.  which  K.  would  take  in  payment  of  S.'s  debt  to  W. 
D.  obtained  this  judgment  from  H.,  and  assigned  it  to  K.,  who 
credited  the  amount  on  S.'s  debt  to  W.  There  was  a  verdict  for 
the  defendant,  and  on  motion  for  a  new  trial,  held :  The  evi- 
dence should  have  been  excluded  from  the  jury,  the  defendant's 
plea  not  describing  the  payment  so  as  to  give  plaintiff  notice  of 
its  nature,  as  required  by  the  statute. 


732  Citations  to  the  Code  of  Virginia. 

In  tlie  case  of  Peery  vs.  Peery,  26  Grat.,  320,  decided  June 
30,  1875.  H.  recovers  a  judgment  against  W.  and  P. ;  after- 
wards W.  and  H.  die,  and  K.  qualifies  as  the  executor  of  W,. 
and  the  administrator  of  H. ;  as  administrator  of  H.,  K.  sues  out 
a  scire  facias  to  revive  the  judgment  against  P.,  the  surviving 
obligor,  and  he  appears  and  files  a  general  plea  of  payment, 
without  stating  the  nature  of  the  payment.  He  proves  that  H. 
in  his  lifetime  assigned  the  judgment  to  D.,  who  was  a  debtor 
of  S.,  who  was  a  debtor  of  W.,  and  that  under  an  agreement  be- 
tween S.  and  by  H.  of  the  bond  of  S.,  though  J.  is  dead. 

If  the  plea  is  sustained  by  the  evidence,  the  payment  of  the 
bond  of  S.  by  H.  is  a  good  payment  pro  tanto  upon  his  bond 
toW. 

Payment  of  a  debt  is  not  necessarily  a  payment  of  money, 
but  that  is  payment  which  the  parties  contract  shall  be  accepted 
as  payment. 

In  the  case  oiPinney  et  als.  vs.  Bennett,  27  Grat.,  365,  decided 
March,  1876,  it  was  held :  The  bank  of  P.  was  ruined  by  the 
late  war,  and  no  officers  of  the  bank  have  been  elected,  nor  has 
there  been  a  meeting  of  the  board  since  April,  1865,  and  it  has 
done  no  business  since,  and  in  fact  it  had  been  abandoned  and 
ceased  to  exist.  In  April,  1866,  H.  and  M.,  suing  as  well  for 
themselves  as  for  all  the  other  stockholders,  creditors,  and  de- 
positors, etc.,  filed  their  bill  against  the  bank  and  the  president 
for  a  settlement  of  its  affairs  and  a  distribution  of  its  assets. 
The  court  appointed  a  receiver  in  the  case,  and  in  June,  1866, 
there  was  a  decree  for  an  account. 

A  debtor  of  the  bank  purchasing  debts  due  from  the  bank 
after  the  decree  for  an  account  is  only  entitled  to  stand  in  the 
shoes  of  his  assignor,  and  receive  his  proportion  of  the  assets 
realized. 

In  the  case  of  Armentroufs  Executors  et  als.  vs.  Gibbons  et 
als.,  30  Grat.,  632,  decided  September,  1878.  In  1856  M.  sold 
and  conveyed  her  share  of  that  tract  of  land  to  her  brothers,  J. 
and  H.,  reserving  a  vendor's  lien  in  the  deed  for  $1,204.93.  In 
1860  J.  and  H.  sold  and  conveyed  with  general  warranty  the 
whole  tract  to  A.  for  $23,500,  of  which  one-third  was  paid  in 
cash,  and  bonds  of  $2,000  given  to  H.  for  the  balance,  payable 
in  each  year,  from  1861  to  1867,  and  $1,666.66  in  1868,  reserv- 
ing in  the  deed  a  vendor's  lien  as  security.  In  1860  H.  assigned 
the  four  bonds  falling  due  in  1865,  1866,  1867,  and  1868  to  K., 
and  K.  assigned  to  G.  in  April,  1861.  K.  assigned  to  S.  the 
bond  due  in  1865.  A.  died  in  1867,  having  paid  off  the  first 
four  bonds  and  made  payments  to  G.  on  the  sixth,  and  after  his 
death  A.'s  executors  paid  to  K.  the  last  bond.  The  deed  from 
M.  to  J.  and  H.  was  recorded,  but  was  destroyed  by  the  Federal 
forces  in  1864.     After  the  war  C,  as  assignee  of  M.,  filed  a  bill 


Citations  to  the  Code  of  Virginia.  733 

to  enforce  the  vendor's  lien  in  the  deed  from  M.  for  the  $1,- 
204.93  and  obtained  a  decree.  Pending  C.'s  suit  G.  filed  his 
hill  to  enforce  the  vendor's  lien  in  the  deed  to  A.  for  a  balance 
due  on  the  two  bonds  assigned  to  him.  A.'s  executors  and  de- 
visees insisted  that  they  should  have  credit  on  the  bonds  as- 
signed to  G.  and  S.  for  the  amount  of  C.'s  decree,  they  insisting 
that  the  purchase-money  paid  by  A.  in  his  lifetime,  and  by  the 
executors  since,  was  paid  without  any  knowledge  of  C.'s  lien  on 
the  land ;  that,  deed  having  been  destroyed,  J.  and  H.  were  in- 
solvent. Held :  A.  was  entitled  to  a  credit  on  account  of  the 
purchase-money  due  by  him  as  a  vendee  of  said  land  for  the 
said  sum  of  $1,204.93,  with  interest,  and  he  was  so  entitled  as 
against  the  assignee  of  said  bonds,  at  least  of  the  assignments 
made  without  his  consent. 

That  the  liability  of  such  assigned  bonds  to  such  right  of  set- 
off is  not  in  the  order  in  which  said  bonds  are  payable,  but  in 
the  inverse  order  of  their  assignment,  and  if  some  of  said  bonds 
were  assigned  and  some  were  not,  the  unassigned  bonds  were 
liable  to  said  right  of  set-off  bonds  before  the  assigned  bonds, 
even  though  the  unassigned  bonds  were  payable  before  the  as- 
signed bonds. 

That  the  said  land  remained  liable  in  the  hands  of  A.,  the 
vendee,  to  the  said  vendor's  lien  for  the  said  sum  of  $1,204,93 
and  interest,  notwithstanding  the  destruction  of  the  record  of 
the  deed,  and  that  the  said  A.  and  his  executors  may  have  paid 
the  full  amount  of  the  purchase-money  and  interest,  without 
actual  knowledge  of  the  existence  of  such  lien  at  the  time  of 
such  payment,  the  due  recordation  of  the  said  deed  in  which 
said  lien  was  reserved  being  constructive  notice  to  him  and  them 
of  the  existence  of  such  lien,  and  as  effectual  for  this  purpose 
as  actual  notice  of  its  existence,  or  as  if  the  deed  had  not  been 
destroyed. 

A.  receiving  notice  of  the  assignment  of  the  said  bond  to  K., 
before  his  payment  of  the  bonds  of  1861,  1802,  1863,  and  1864, 
then  such  payment,  to  the  extent  of  the  said  sum  of  $1,204.93, 
with  interest,  was  a  payment  in  his  own  wrong ;  but  if  he  made 
such  payment  without  such  notice,  then  he  or  his  intestate  is 
entitled  to  a  credit  for  the  sum  of  $1,204.93  on  the  said  assigned 
bonds. 

The  bond  for  $1,666.66  paid  by  the  executors  of  A.  to  K.  was 
subject  to  the  said  set-off  in  preference  to,  and  in  exoneration 
of,  the  bonds  assigned  by  K.  to  G.  and  S.,  and  this  though  the 
executors  paid  it  without  knowledge  of  the  said  C.'s  lien.  Both 
A.  and  his  executors  were  chargeable  with  constructive  notice 
of  said  set-off,  by  reason  of  the  recordation  of  the  deed  afore- 
said, and  the  liability  of  said  estate  resulted  from  such  notice. 

The  bill  having  been  filed  to  enforce  the  vendor's  lien  upon 


734  Citations  to  the  Code  op  Virginia. 

the  land,  it  was  not  necessary  that  the  plaintiff  should  have  a 
settlement  of  an  account  of  the  personal  estate  of  A.,  for  the 
purpose  of  exhausting  the  same  in  the  payment  of  his  debts,  be.- 
fore  he  could  enforce  the  charge  reserved  on  the  land  for  the 
payment  of  the  purchase -money.  This  charge  is  as  effectual  as 
would  have  been  a  deed  of  trust  on  the  land  to  secure  the  pur- 
chase-money, which  certainly  might  have  been  enforced  by  a 
sale  either  before  or  after  A.'s  death,  without  a  necessity  of 
first  exhausting  the  personal  estate. 

In  the  case  of  Edmunds  (Assignee)  vs.  Harper,  31  Grat.,  637, 
decided  March  20,  1879,  it  was  held :  S.  as  principal  and  H.  as 
his  surety  executed  their  bond  to  E.  E.  owes  S,  and  N.,  part- 
ners, an  account,  and  N.  assigns  it  to  S.  E.  becomes  bankrupt, 
and  S.  proves  the  account  before  the  register  in  bankruptcy, 
and  he  afterwards  becomes  bankrupt.  The  assignee  in  bank- 
ruptcy of  E.  sues  H.  on  the  bond,  and  H.  pleads  the  account  as 
set-off.  Held :  Under  the  Virginia  statute  the  account  is  a  valid 
set-off  for  H.  in  the  action  against  him  on  the  bond. 

In  the  case  of  Liberty  Savings  Bank  vs.  Campbell  et  als.,  75 
Va.,  534,  decided  August  11,  1881,  J.  and  C.  were  partners 
and  the  owners  of  two  bonds  executed  to  them  on  a  sale  of  land. 
The  bonds  were  in  the  custody  of  J.,  who,  to  raise  money  for 
his  private  purposes,  pledged  them  by  an  attempted  assign- 
ment, along  with  other  securities,  to  the  Liberty  Savings  Bank, 
where  he  procured  certain  notes  to  be  discounted,  and  used 
the  proceeds,  sometimes  for  his  own  benefit  and  sometimes  for 
the  benefit  of  the  firm.  The  bank  afterwards  made  collections 
on  the  bonds,  and  ultimately  became  the  owner  of  them  by 
purchase  at  public  auction,  where  they  had  been  sold  as  forfeited 
collateral.  In  a  controversy  between  C.  (representing  the  firm) 
and  the  bank  (representing  the  bonds  and  their  proceeds)  it 
was  held:  That  the  bank  is  equitably  entitled  to  set-off  against 
C.'s  claim  the  amount  of  money  which  the  bank  paid  out  on 
J.'s  checks,  and  which  actually  went  to  the  discharge  of  the 
partnership  debts ;  and  it  makes  no  difference  that  the  money 
so  checked  upon  by  J.  was  the  proceeds  of  notes  discounted  by 
the  bank  for  his  private  accommodation. 

In  the  case  of  Dobyns  &  Davis  vs.  Rawley,  76  Va.,  537. 

Joint  Purchasers. — Sureties. — Substitution. — Innocent  Pur- 
chaser.— Set-offs. — Alteration  of  Bond.  E.  conveys  land  to 
joint  purchasers,  E.  and  J.,  but  retains  a  lien  for  unpaid  price. 
They  divide  it,  valuing  R.'s  part  at  two  thousand  six  hundred 
dollars,  J.'s  at  two  thousand  four  hundred  dollars,  and  B.  con- 
veys to  J.  his  part,  retaining  no  lien.  B.  (J.  uniting)  conveys 
his  part  to  F.  D.,  retaining  lien  for  unpaid  price.  B.  and  J. 
pay  F.  equally,  except  on  note  of  one  thousand  five  hundred 
dollars  for  last  instalment,  whereof  B.  owed  eight  hundred  and 


Citations  to  the  Code  of  Virginia.  735 

fifty  dollars  and  J.  six  hundred  and  fifty  dollars ;  but  R.  paid 
four  hundred  and  fifty  dollars  on  it,  when  F.  D.  took  it  up  from 
F.  By  recorded  title  bond,  J.  sold  his  part  to  B.,  who  owed 
balance  of  one  thousand  three  hundred  and  fifty  dollars  on  the 
price.  In  1879  R.  sued  F.  D.  to  enforce  his  lien  for  the  unpaid 
price,  making  only  F.  D.  defendant;  but  all  concerned  were 
ultimately  made  parties  by  amended  bills  that  were  demurred 
to  as  too  multifarious.  B.  claimed  that  he  was  purchaser  for 
value  without  notice ;  but  the  conveyance  from  F.  to  R.  and  J., 
retaining  lien,  was  recorded  before  B.  bought.  J.  relied  on  a  six 
hundred  dollar  note  of  R.  to  J.  as  guardian,  and  on  a  one  thou- 
sand dollar  bond  of  P.  and  R.  to  J.,  partly  in  his  own  right  and 
partly  as  guardian,  as  set-ofis  against  any  sum  demanded  of  him 
by  R.  on  note  given  by  R.  and  J.  to  F.,  and  held  by  F.  D.  The 
six  hundred  dollar  note  was  included  in  a  judgment  confessed 
by  J.  to  his  wards,  but  which,  though  possibly  secured,  was  not 
paid.  The  one  thousand  dollar  bond  had  been  changed  in  a 
material  point  by  J.  without  R.'s  consent.     Held : 

1.  F.  D.  is  entitled  to  set  off  the  note  of  R.  and  J.,  which  he 
took  up  from  F.,  against  the  balance  that  he  owes  on  the  land 
conveyed  to  him  by  R.  and  J. 

2.  R.  hath  a  lien  on  the  land  conveyed  by  him  to  J.,  in  the 
hands  of  B.,  who  is  not  a  purchaser  for  value  without  notice, 
not  having  paid  all  the  purchase-money,  and  being  affected 
with  notice  of  the  lien  on  the  whole  land  conveyed  by  F.  to  R. 
and  J.,  which  is  retained  on  the  face  of  the  recorded  deed;  and 
to  satisfy  that  lien,  so  much  as  is  necessary  for  the  purpose 
must  be  sold. 

3.  The  amended  bills  are  not  too  multifarious,  the  new  par- 
ties and  matters  being  necessary. 

4.  The  six  hundred  dollar  note  is  not  a  proper  set-off  against 
R.'s  claim,  as  J.  holds  it  only  as  a  guardian,  no  title  in  his  own 
right  having  been  vested  by  mere  confession  of  judgment  to  his 
wards. 

5.  Had  the  wards'  money  been,  by  agreement  actually  exe- 
cuted, applied  by  the  guardian  to  pay  his  own  debt  to  R.,  such 
application  would  not  be  allowed  to  stand  as  against  the  wards. 
And  even  as  between  R.  and  the  guardian,  such  an  agreement 
would  not  be  carried  out  by  this  court. 

6.  The  one  thousand  dollar  bond,  having  been  materially 
changed  by  J.  after  its  delivery,  is  null,  and,  of  course,  cannot 
be  used  as  a  set-off  against  R.'s  claim  on  J. 

In  the  case  of  Smith  vs.  Bradford,  76  Va.,  758. 

3.  Idem. — Idem. — Equitable  Set-offs. — Competency  of  Wit- 
nesses.— Case  at  Bar.  B.  and  wife  sell  and  convey  her  maiden 
land.  Purchase  bonds  secured  by  trust  deed  thereon.  At  same 
time  B.  conveys  his  encumbered  land  to  trustee  for  Mrs.  B.'s 


736  Citations  to  the  Code  of  Virginia. 

separate  use,  and  in  trust  deed  it  is  stipulated  that  trustee  shall 
collect  the  bonds  and  discharge  the  liens.  B.  collected  and 
misapplied  the  money.  Later,  when  insolvent,  B.  assigned  to  the 
trustee  two  other  bonds  and  his  interest  jure  inariti  in  the  per- 
sonal estate  of  his  wife's  father,  P.,  deceased,  in  lieu  of  the  trust 
funds  so  misapplied.  W.,  a  brother  of  Mrs.  B.,  was  indebted  to 
P.'s  estate.  B.  was  indebted  to  W.  Mrs.  B.  died,  leaving  chil- 
dren. In  suit  to  settle  the  administration  of  P.'s  estate,  W.  filed 
petition  alleging  that  B.  owed  him,  and  praying  that  what  he 
owed  B.  on  account  of  his  distributive  share  in  P.'s  estate  might 
be  set  off  by  B.'s  indebtedness  to  him.     Held: 

1.  The  bonds  given  for  the  maiden  land  of  Mrs  B.,  and  by  the 
trust  deed  securing  their  payment,  settled  to  her  separate  use, 
and  directed  to  be  applied  to  discharge  the  liens  on  the  land 
conveyed  to  her  for  her  separate  use,  so  far  as  needed  for  the  pur- 
pose, are  to  that  extent  to  be  considered  as  her  separate  real 
estate,  at  her  death  descendible  to  her  children  as  her  heir  at 
law. 

2.  The  assignment  by  B.  dated  December  1,  1869,  in  trust  for 
Mrs.  B. ,  is  valid,  and  the  assigned  property,  so  far  as  is  needed 
to  discharge  said  liens,  is  to  be  considered  as  her  separate  real 
estate.  But  the  surplus,  if  any,  is  to  be  considered  as  her  sepa- 
rate personal  estate,  and  such  personal  estate  having,  upon  her 
death,  vested  in  B.  as  her  distributee,  can  be  properly  set  off  by 
W.  to  the  extent  of  B.'s  indebtedness  to  him  against  his  debt  to 
P.'s  estate. 

In  the  case  of  Botetourt  County  vs.  Burger,  86  Va.,  530,  de- 
cided November  21,  1889,  it  was  held:  In  an  action  on  a  bond 
with  collateral  conditions,  where  the  only  plea  is  "conditions 
performed,"  the  defendant  is  not  entitled  to  prove  a  set-off. 

Section  3299. 

In  the  case  of  Chew  {.Executor  of  Wormeley)  vs.  Carter's  Ad- 
ministratrix, 6  Munf.,  120,  decided  February  18,  1818,  it  was 
held :  In  debt  on  a  bond,  if  defendant  plead  that  the  same  was 
obtained  by  false  suggestions  and  misrepresentations  by  the 
plaintiff,  as  per  preamble  in  the  said  bond,  and  the  plaintiff* 
join  issue  as  to  the  fact,  which  issue  is  found  against  him  by  a 
jury,  whatever  estoppel  (if  any)  might  have  been  to  such  plea 
is  thereby  waived,  and  judgment  ought  to  be  for  the  defendant. 

Issue  being  joined  on  a  plea  that  a  bond  was  obtained  by 
fraud,  a  verdict  "for  the  defendant,  because  the  jury  believe 
the  bond  was  obtained  by  fraudulent  means,"  is  sufficiently  posi- 
tive and  certain. 

In  the  case  of  Taylor  vs.  King,  6  Munf.,  358,  decided  April 
7,  1819,  it  was  held :  In  a  court  of  common  law,  fraud  may  be 
given  in  evidence  to  vacate  a  deed  on  the  plea  of  non  est  factum,. 


Citations  to  the  Code  of  Virginia.  737 

if  sucli  fraud  relate  to  the  execution  of  the  instrument,  as  if  it 
be  misread  to  the  party,  or  his  signature  be  obtained  to  an  in- 
strument which  he  did  not  intend  to  sign ;  but  fraud  committed 
in  a  settlement  of  accounts  which  preceded,  or  in  a  statement  of 
facts  which  induced,  its  execution  cannot  be  pleaded  or  given  in 
evidence,  the  only  remedy  in  such  cases  being  in  equity. 

In  the  case  of  Wijche  vs.  Maclin,  2  Rand.,  426,  decided  May  7, 
1824,  it  was  held :  In  an  action  at  law  on  a  specialty  it  is  not 
competent  for  the  defendant  to  avoid  it  by  pleading  that  it  was 
obtained  by  fraudulent  misrepresentations  made  by  the  plaintiif. 

In  the  case  of  Tomlinson's  Administrator  vs.  Mason,  6  Rand., 
169,  decided  March,  1828,  it  was  held:  In  debt  on  a  bond  a 
plea  that  the  bond  was  obtained  by  fraud,  covin,  etc.,  without 
saying  whether  the  fraud  was  in  the  consideration  of  the  bond, 
or  in  its  execution,  is  immaterial. 

Where  property  is  sold,  a  bond  taken,  suit  brought,  and  the 
defendant  pleads  that  the  property  was  of  less  value  than  it  was 
represented  to  be,  such  defence  sounding  in  damages  is  bad, 
and  the  proper  remedy  would  be  an  action  of  deceit. 

In  the  case  of  Christian  and  Wife  et  ah.  vs.  Miller  {Assignee)^ 

3  Leigh,  78,  decided  October,  1831,  it  was  held :  A.  and  B.  exe- 
cute a  joint  bond  to  C,  part  of  the  consideration  of  which  is  the 
price  of  a  parcel  of  corn  sold  by  C.  to  A.,  deliverable  at  a  day 
subsequent  to  the  date  of  the  bond ;  the  corn  is  not  delivered 
according  to  the  contract.  In  debt  on  the  bond  by  C.  against  A. 
and  B.  the  defendants  cannot  set  off  the  value  or  the  price  of  the 
corn. 

In  the  case  of  Murray,  Caldwell  <&  Co.  vs.  Pennington,  3  Grat., 
91,  decided  April,  1846,  it  was  held :  A  lessor  covenants  to  put 
certain  repairs  on  the  demised  premises,  which  he  fails  to  do. 
In  an  action  of  replevin  upon  a  distress  for  the  rent  the  tenant 
may  set  off  the  damages  accrued  by  the  failure  of  the  lessor  to 
make  the  repairs. 

In  a  suit  between  third  persons  and  a  lessor,  to  which  the 
lessee  is  not  a  party,  a  decree  is  made  directing  the  sheriff  to 
rent  out  the  demised  premises.  Tlie  premises  are  rented  out 
and  the  lessee  yields  possession  of  the  premises.  Held :  That 
as  the  decree  did  not  direct  the  sheriff  to-evict  the  lessee,  and 
there  was  no  paramount  title  under  which  the  lessee  might  have 
been  evicted,  his  surrender  of  the  premises  was  not  an  eviction 
so  as  to  release  him  from  the  payment  of  rent. 

In  the  case  of  IsbelVs  Administrator  vs.  NorvdVs  ExecxdoVy 

4  Grat.,  176,  decided  October,  1847,  it  was  held :  Upon  an  ac- 
tion on  a  bond  given  for  the  hire  of  two  slaves,  one  of  whom 
was  never  delivered  to  the  hirer,  the  obligor  is  entitled  under  a 
special  plea  to  a  credit  to  the  amount  of  the  hire  of  the  slave 
not  delivered. 

47 


738  Citations  to  the  Code  of  Virginia. 

Hirer  of  a  slave  pays  physician  for  attending  on  the  slave 
•whilst  he  is  hired.  He  is  entitled  to  have  the  amount  repaid 
him  by  the  owner  of  the  slave. 

In  the  case  of  Pence  {for,  etc.)  vs.  Hustons  Executors,  6  Grat., 
304,  decided  July,  1849.  In  debt  upon  a  bond  the  defendant 
files  a  special  plea  under  the  act  of  April  16,  1831,  in  which  he 
a,lleges  that  the  bond  was  executed  for  part  of  the  purchase- 
money  of  a  tract  of  land  which  the  obligee  in  the  bond  had 
conveyed  to  the  defendant,  with  a  covenant  to  warrant  the  title 
thereof  free  of  the  claims  of  all  persons  whatever ;  that  a  valid 
claim  had  been  set  up  to  the  land  by  a  purchaser  from  the  de- 
fendant's vendor,  and  the  defendant  had  been  compelled  to  give 
up  the  land,  and  had  purchased  it  again  from  said  claimant  at 
an  advanced  price.  The  plaintiff  took  issue  on  the  plea,  and 
there  was  a  verdict  for  the  defendant.  Held :  That  if  the  plea 
does  not  set  up  a  defence  which  is  authorized  by  the  statute, 
yet  it  asserts  a  substantial  claim  against  the  plaintiff;  and  after 
verdict  it  is  cured  by  the  statute  of  jeofails. 

In  the  case  of  Shiflett  vs.  The  Orange  Humane  Society ,  7  Grat., 
297,  decided  March  5,  1851,  it  was  held :  In  an  action  for  a 
bond  given  for  the  purchase-money  of  land,  the  act  of  1831  does 
not  authorize  a  plea  of  failure  of  consideration  upon  equitable 
grounds,  which  would  require  a  recision  of  the  contract  out  of 
which  the  bond  originated,  and  a  reinvestment  of  the  obligee 
with  the  interest  of  the  land  alleged  to  have  been  sold  to  the 
obligor. 

In  the  case  of  Cunningham  vs.  Smith  et  als.,  10  Grat.,  255,  de- 
cided July,  1853,  it  was  held :  But  in  such  case  the  plea  avers 
that  the  representations  were  untrue,  and  that  the  plaintiff  at 
the  time  of  making  them  knew  them  to  be  untrue,  and  know- 
ingly made  them  with  the  intent  to  defraud  the  defendant;  and 
proceeds  to  set  out  the  unsoundness  of  numerous  articles  pur- 
chased, and  to  detail  particulars  in  which  the  representations 
had  turned  out  to  be  untrue.     This  is  a  good  plea. 

In  the  case  of  Watkins  vs.  Hopkins  {Executor),  13  Grat.,  743, 
decided  March  11,  1857,  it  was  held :  A  plea  of  equitable  offset 
under  the  statute  must  show  that  the  offset  is  such  as  may  be 
set  up  under  the  statute,  and  must  be  verified  by  affidavit. 

In  an  action  on  a  bond  for  five  hundred  dollars,  given  for 
the  last  payment  of  the  purchase-money  of  land,  a  plea  that  the 
plaintiff  was  to  make  the  defendant  a  good  title  to  the  land 
upon  the  payment  of  the  bond,  and  that  the  defendant  had 
offered  to  pay  it  upon  the  making  of  the  title,  and  that  the 
plaintiff  had  failed  and  refused  to  make  the  title,  by  reason 
whereof  the  consideration  had  failed  to  the  extent  of  two  hun- 
dred and  fifty  dollars,  is  not  a  good  plea  in  substance.  In  such 
an  action  a  plea  that  the  plaintiff  had  failed  to  give  the  de- 


Citations  to  the  Code  of  Virginia.  739 

fendant  possession  of  two  acres  of  the  land  for  two  months 
after  the  time  at  which  bj  the  contract  he  was  to  deHver  pos- 
session, or  that  he  had  not  delivered  the  tenement  in  the  plight 
and  condition  in  which  it  was  at  the  titne  of  the  sale,  and  in 
which  by  the  contract  he  was  to  deliver  it,  but  delivered  it  in  a 
damaged  condition  from  injuries  done  or  permitted  in  the  mean- 
time to  the  tenement  and  freehold,  is  a  good  plea,  setting  np  a 
partial  failure  of  the  consideration. 

The  reference  to  21  Grat.,  678,  is  an  error. 

In  the  case  of  Burtners  vs.  Reran,  24  Grat.,  42,  decided  No- 
vember, 1873,  it  was  held:  Where  a  deed  is  procured  by  a 
fraudulent  misrepresentation  the  defence  can  only  be  made  at 
law  in  the  mode  provided  by  the  statute,  and  the  defendant 
should  file  a  plea  averring  the  fraud  or  special  circumstances 
which  entitle  him  to  relief  in  equity.  And  the  facts  should  be 
set  forth  with  sufl&cient  precision  and  certainty  to  apprise  the 
plaintiff  of  the  character  of  the  defence  intended  to  be  made, 
and  to  enable  the  court  to  decide  whether  the  matter  relied  on 
constitutes  a  valid  claim  to  equitable  relief. 

In  the  case  of  IIuJfYS.  Broyles,  26  Grat.,  283,  decided  June 
16,  1875,  it  was  held :  A  party  who  in  an  action  of  debt  against 
him  files  a  plea  under  the  statute  of  the  breach  of  the  warranty 
in  the  sale  of  an  animal,  and  claims  to  be  relieved  to  the  extent 
of  the  price  paid  for  the  animal,  in  which  he  succeeds,  cannot 
maintain  another  action  for  other  damages  and  expenses  he  has 
incurred  on  account  of  the  breach  of  said  warranty. 

A  party  filing  a  plea  under  said  statute  may  claim  and  recover 
all  the  damages  he  has  sustained  by  the  breach  of  the  warranty 
which  he  could  recover  in  an  action  for  a  breach  of  warranty. 
If  a  party  filing  such  a  plea  only  claims  and  recovers  a  part  of 
the  damages  he  has  sustained,  and  then  brings  an  action  to 
recover  for  other  damages,  a  plea  of  the  former  judgment  is  a 
good  plea  in  bar  to  the  action. 

In  such  action  defendant  pleads  7ion  assumpsit,  and  a  special 
plea  of  the  former  judgment,  vouching  the  record,  to  which 
special  plea  plaintiff  demurs.  The  court  sustains  the  demurrer, 
and  the  plaintiff  not  replying  further  to  the  special  plea  the 
court  may  render  judgment  for  the  defendant  without  trying 
the  issue  upon  the  plea  of  7wn  assumpsit. 

In  the  case  of  Keckley  vs.  Union  Bank  of  Winchester^  79  Va., 
458,  decided  October  2,  1884,  it  was  held :  Where  plea  avers 
that  defendant  had  been  induced  by  plaintiff  to  make  a  note,  for 
which  the  note  in  suit  is  a  renewal,  and  which  was  given  for  an- 
other's debt,  by  representing  to  defendant  that  that  debt  was 
amply  secured  by  trust  deed  on  real  estate,  whilst  the  plea  on 
its  face  shows  that  the  note  was  renewed  several  times  after  the 
defendant  knew  that  the  trust  deed  would  not  satisfy  the  debt 


740  Citations  to  the  Code  of  Virginia. 

and  that  defendant  had  changed  the  debt  by  dropping  the  origi- 
nal debtor,  and  giving  the  note  in  suit,  such  facts  constitute  no 
defence  to  the  note  in  suit. 

In  the  case  of  Grayson  vs.  Buchanan,  88  Va.,  251,  decided 
July  9,  1891.  A  contract  for  the  sale  of  land,  containing,  ac- 
cording to  representations,  one  hundred  and  forty  acres  and 
one-half  of  a  certain  spring,  but  which  afterwards  proved  to 
contain  only  one  hundred  and  twenty-six  acres  and  not  the 
spring,  was  held  liable  to  abatement  in  price.  Though  written 
contract  fails  to  mention  spring,  and  a  bill  in  eqiiity  is  brought 
to  reform  contract,  alleging  mistake  on  one  side  accompanied 
by  misrepresentations  on  the  other,  parol  evidence  is  admissible 
to  show  that  the  true  contract  and  relief  will  be  granted ;  and  so 
likewise,  where  the  defence  is  made  in  action  at  law  for  the  pHce 
by  special  plea  in  the  nature  of  set-off  under  this  section,  such 
plea  is  allowable  in  such  case. 

Where  a  plea  in  the  nature  of  set-off  filed  in  such  case  suffi- 
ciently conforms  to  the  statute,  but  was  not  sworn  to,  such  de- 
fect is  not  one  for  which  judgment  will  be  reversed,  inasmuch 
as,  upon  survey  of  entire  record,  the  judgment  appears  to  be 
substantially  right. 

Section  3303. 

The  case  of  Jones  {Executor')  vs.  Jones,  1  Munf.,  150,  is  an 
error. 

See  the  case  of  Trirnyer  vs.  Pollard,  5  Grat.,  460,  cited  antey 
Section  3298. 

In  the  case  of  Botetourt  County  vs.  Burger,  86  Va.,  530,  de- 
cided November  21,  1889,  it  was  held  :  In  an  action  on  a  bond 
with  collateral  conditions,  where  the  only  plea  is  "  conditions 
performed,"  the  defendant  is  not  entitled  to  prove  a  set-off. 

CHAPTER  CLXI. 

Section  3306. 

In  the  case  of  BullWs  Executor  vs.  Winston,  1  Munf.,  269, 
decided  March  22,  1810,  it  was  held :  An  appeal  from,  or  super- 
sedeas to,  an  order  quashing  an  execution  against  two  defendants 
need  not,  if  one  of  them  die,  be  revived  against  his  representa- 
tive, but  should  be  proceeded  on  as  to  the  other  only. 

In  the  case  of  Ilairston  vs.  Woods,  9  Leigh,  308,  decided 
March,  1838,  it  was  held :  Where  there  are  two  plaintiffs  in  a 
supersedeas,  if  one  of  them  die,  the  cause  will  abate  as  to  him, 
and  proceed  in  the  name  of  the  surviving  plaintiff. 

In  the  case  of  Bose's  Administrator^^.  Burgess,  10  Leigh,  186 
(2d  edition,  193),  decided  April,  1839.  Pending  an  action  of 
detinue  at  the  suit  of  four  plaintiffs,  one  of  them  dies,  and  a 


Citations  to  the  Code  of  Virginia.  741 

^dre  facias  is  awarded  to  revive  the  action  in  the  name  of  his 
executor.     Held :  The  scii'e  facias  was  improvidently  awarded. 

In  the  case  of  Ciinnhigliain  {Execxdor),  etc.,  vs.  Smithson,  12 
Leigh,  33,  decided  March,  1841,  it  was  held:  Decree  against 
surviving  partners  and  executor  of  deceased  partner  of  mercan- 
tile hoiise,  from  which  defendant  appeals,  and  pending  appeal, 
one  of  the  surviving  partners  dies ;  the  death  is  not  suggested, 
and  the  court  proceeds  to  hear  cause,  reverses  the  decree,  and 
dismisses  plaintiff's  bill  as  to  the  surviving  partners;  proof  is 
afterward  offered  of  the  death  of  one  of  them  before  the  hearing, 
and  appellee  moves  to  set  aside  decree  of  reversal  for  that  cause ; 
motion  overruled  because  there  was  still  a  surviving  partner  be- 
fore the  court,  who  represented  the  whole  interest,  and  because 
appellee  cannot  complain  of  a  decree  in  favor  of  the  deceased 
party. 

In  the  case  of  Townes  vs.  Birchett,  12  Leigh,  173,  decided 
April,  1841,  it  was  held:  Bill  in  equity  against  two  persons  who 
have  been  auctioneers  and  partners ;  one  dies  pending  the  suit, 
it  is  not  necessary  to  revive  the  suit  against  the  representative 
of  the  decedent ;  the  plaintiff  may  proceed  against  the  survivor 
alone. 

See  the  case  of  Richardson^ s  Executor  vs.  Jones,  12  Grat.,  53, 
cited  ante,  Section  2855. 

Section  3307. 

In  the  case  of  JVorris  vs.  Tomlin  dh  Gray,  2  Munf.,  336,  de- 
cided June  24,  1811,  it  was  held:  Process  of  revivor  is  not 
necessary  in  the  court  of  appeals,  if  the  appellee  died  between 
verdict  and  judgment. 

In  the  case  of  lieicTs  Administrator  vs.  Striderf<'s  Adminis- 
trators, 7  Grat.,  76,  decided  May  14,  1850,  it  was  held :  Where 
a  party  to  a  cause  pending  in  the  supreme  court  of  appeals  dies 
pending  the  appeal,  it  is  not  necessary  to  revive  the  cause  in  the 
name  of  the  representative,  but  the  case  may  be  revived  when 
it  goes  back  to  the  court  below. 

Section  3308. 

In  the  case  of  Keel  ds  Roberts  vs.  Ilerbert's  Executors,  1  Wash., 
138,  decided  at  the  fall  term,  1792.  A  supersedeas  was  awarded 
against  Herbei-t,  who  afterwards,  and  before  the  service  of  the 
writ,  died.  This  court,  on  motion,  awarded  a  new  s^tpersedeas 
against  the  executors,  which  was  executed,  but  afterwards 
quashed  it,  and  awarded  a  scire  facias  to  hear  errors  against  the 
executors,  being  of  the  opinion  that  the  second  supersedeas  could 
not  be  considered  as  a  continuing  process,  but  a  new  one,  and 
therefore  that  the  executor  could  not  sue  upon  the  bond  first 
given  for  prosecuting  the  supersedeas. 

In  "the  case  of  Daniel  vs.  liohinson's  Executors,  1  Wash.,  154, 


742  .Citations  to  the  Code  of  Virginia. 

decided  at  the  spring  term  of  1793.  The  appellee  being  dead, 
counsel  for  the  defence  moved  to  enter  appearance  for  the  ex- 
ecutors without  waiting  for  a  scire  facias^  which  is  only  neces- 
sary to  force  an  appearance.  The  court  granted  the  motion 
and  tried  the  cause  at  the  instance  of  the  counsel  for  the  ap- 
pellee, although  it  was  objected  by  Mercer,  J.,  that  a  trial  at 
this  time  would  be  a  surprise  upon  the  appellant,  who  might 
consider  the  appeal  as  abated  until  regularly  revived;  but 
it  was  said  by  the  court  that  the  appellant  ought  to  follow  the 
cause. 

In  the  case  of  Boswell  <&  Johnson  vs.  Jones,  1  Wash.,  322,  de- 
cided at  the  fall  term,  1794.  An  action  of  trespass  was  brought 
by  Jones  against  the  appellants  in  the  district  court;  they 
pleaded  jointly  not  guilty.  A  verdict  was  rendered  against 
Johnson  for  £15,  and  the  defendant,  Boswell,  was  found  not 
guilty.  Upon  the  motion  of  Johnson  alone  a  new  trial  was 
awarded,  and  a  verdict  was  afterwards  found  for  X60  against 
both  defendants.  A  motion  in  arrest  of  judgment  being  made 
by  Boswell,  and  overruled,  both  defendants  applied  for  and 
obtained  a  supersedeas  to  the  judgment  of  the  court  rendered 
upon  the  last  verdict. 

The  plaintiffs  in  error  being  both  dead,  it  was  submitted 
to  the  court  whether  a  new  supersedeas  or  writ  of  error  should 
be  awarded,  or  whether  a  scire  facias  io  revive  the  former  ought 
to  issue,  and  in  the  latter  case  whether  it  should  be  revived  in 
the  names  of  the  executors  of  both  plaintiffs,  or  of  the  survivor 
only.  Held:  A  scire  facias  should  issue  in  the  names  of  the 
executors  of  both  the  plaintiffs. 

In  the  case  of  Tomkies  vs.  ^Valker,  6  Call,  44,  decided  April, 
1806,  it  was  held:  If  in  ejectment  judgment  be  given  for  the 
defendant,  and  the  plaintiff  appeals,  pending  which  the  appellee 
dies,  the  appellant  cannot  sue  out  a  scire  facias  against  his  heirs. 
He  must  bring  a  new  suit. 

In  the  case  of  Keys' s  Executor  vs.  TIarmer's  Representatives, 
1  H.  &  M.,  330,  decided  June  16,  1807,  it  was  held:  A  suit  in 
chancery  for  a  conveyance  of  land,  in  case  the  defendant  dies 
before  a  final  decree,  ought  to  be  revived  against  his  heirs  and 
devisees,  and  all  other  persons  holding,  claiming,  or  in  any 
manner  interested  in  the  land  in  question. 

In  the  case  of  Q-ibhs  vs.  Perkinson,  2  H.  &  M.,  211,  decided 
March  29,  1808.  An  appeal  having  abated  at  one  term  by  the 
death  of  the  appellant,  at  the  next  term  a  scire  facias  was 
awarded  on  the  motion  of  his  administrator,  who  had  qualified 
since  the  abatement,  for  the  appellee  to  show  cause  why  the 
appeal  should  not  be  revived. 

In  the  case  of  Buster  vs.  Wallace^  3  H.  &  M.,  217,  decided 
November  16,  1808,  it  was  held :  An  appeal  having  abated  at  the 


Citations  to  the  Code  of  Virginia.  743 

March  term  by  the  death  of  the  appellant,  a  scire  facias  to  re- 
vive it  may  be  awarded  at  the  ensuing  October  term. 

In  the  case  of  Scott  vs.  Adams,  3  H.  &  M.,  501,  decided  April  29, 
1809,  it  was  held :  Where  the  appellee  dies,  the  court  will  not  take 
up  the  appeal  in  the  name  of  the  executors  without  giving  the 
appellant  notice  of  a  scire  facias,  especially  where  a  great  length 
of  time  has  elapsed  since  the  appeal. 

In  the  case  of  Carter  vs.  Carr,  1  Va.  (Gilmer),  145,  decided 
December  8,  1820,  it  was  held:  The  death  of  one  of  the  de- 
mandants in  a  writ  of  right  before  trial  abates  the  whole  writ. 

In  the  case  of  Drago  vs.  Stead  et  als.,  2  Kand.,  454,  decided 
May  28,  1824,  it  was  held :  The  death  of  one  of  the  demandants 
in  a  writ  of  right  before  trial  and  judgment  abates  the  whole 
writ,  and  it  is  of  no  importance  whether  the  deceased  demand- 
ant left  a  child  or  not. 

In  the  case  of  Harris  vs.  Crenshaw,  3  Rand.,  14,  decided  No- 
vember, 1825,  it  was  held :  In  a  case  of  trespass  qucere  claiisum 
fregit,  if  the  defendant  dies  before  verdict,  the  writ  will  abate, 
but  if  after  verdict  and  judgment,  the  plaintiff  has  a  right  to  a 
sci.  fa.  against  the  personal  representative  of  the  defendant, 
though  not  against  his  heir  or  devisee,  and  the  personal  repre- 
sentative has  a  right  to  reverse  the  judgment  on  appeal  ^if 
he  can. 

In  the  case  of  Com.monwealth  vs.  Haines,  2  Va.  Cases,  134, 
decided  by  the  General  Court  at  the  June  term,  1818,  it  was 
held :  On  a  joint  recognizance  by  three  persons,  default  being 
made,  a  sci.  fa.  was  awarded,  which  abated  by  return  as  to  one, 
by  death  as  to  the  second,  and  the  third  pleaded  to  issue,  after 
which  he.  died.  A  scire  facias  to  revive  was  proper  against  the 
personal  representative  of  the  third  cognizor,  though  not  against 
his  heirs.  But  original  process  of  sci.  fa.  will  lie  against  the 
heirs  of  the  said  cognizor  and  against  the  heirs  and  personal 
representatives  of  the  second  deceased  cognizor. 

In  the  case  of  Lovell  vs.  Arnold,  2  Leigh,  16,  decided  Feb- 
ruary, 1830.  Writ  of  right  abates  at  the  death  of  the  tenant 
in  1812,  and  the  abatement  is  entered  of  record ;  sci.  fa.  sued 
out  by  demandant  in  1820  to  revive  the  suit  against  heirs  of 
tenant.  Held :  The  abatement  was  absolute,  and  siiit  could  not 
be  revived  under  provision  of  statute  of  1819,  that  pro\'ision 
being  prospective. 

For  the  references  to  3  Leigh,  42  and  344,  see  Chapter  138. 

See  the  case  of  Cloptons  Administrator  vs.  Clarke's  Executor, 
7  Leigh,  325,  cited  ante.  Section  2920. 

The  reference  to  7  Leigh,  720,  is  an  error. 

In  the  case  of  Davis  et  als.  vs.  Teays,  3  Grat.,  283,  decided 
at  the  July  term,  1846.  A  writ  of  right  is  brought  against  a 
feme  life  tenant,  who  dies,  and  the  demandants  revive  the  action 


744  Citations  to  the  Code  of  Virginia. 

against  her  beirs  at  law.  Tbej  claim  and  hold  the  land  in  con- 
troversy, not  as  her  heirs  at  law,  but  as  devisees  under  the  will 
of  her  father.  Held :  The  demandants  may  revive  against  the 
heirs  of  the  first  tenant,  and  they  may  defend  the  action  by 
showing  title  in  themselves,  however  revived. 

In  the  case  of  Chapmtin  vs.  Dunlap,  4  Grat.,  86,  decided 
July,  1847,  it  was  held :  The  defendant  in  a  proceeding  of  un- 
lawful detainer  dies  pending  an  appeal  by  the  plaintiff  below. 
The  cause  cannot  be  revived. 

In  the  case  of  J^ic/ianhon^s  Administrator  vs.  Prince  George 
Co.  Justices,  11  Grat.,  190,  decided  April,  1854.  A  judgment  is 
recovered  in  the  name  of  B.  H.  and  three  others,  justices  of 
Prince  George  county,  for  the  benefit  of  the  marshal  of  the 
Superior  Court  of  Chancery  of  the  Williamsburg  district.  The 
defendant  being  dead,  a  scire  facias  issued  to  revive  the  judg- 
ment, which,  after  setting  out  the  plaintiffs,  and  the  recovery  of 
the  judgment  for  the  benefit  of  the  marshal,  adds,  "which  mar- 
shal was  W."     Held :  This  is  not  a  variance. 

In  this  case,  the  marshal  being  dead,  the  sci re  facias  recites 
that  it  was  awarded  at  the  instance  of  M.,  his  administrator. 
Though  it  might  have  been  more  regular  for  the  scire  facias  to 
recite  that  it  was  awarded  at  the  instance  and  on  the  behalf  of 
the  plaintiffs  on  the  record,  yet,  as  it  would  have  been  good  if 
the  averment  at  whose  instance  it  had  issued  had  been  wholly 
omitted,  the  recital  was  mere  surplusage,  and  does  not  vitiate 
the  scire  facias. 

Neither  the  scire  facias  nor  any  part  of  the  record  showing 
what  was  the  character  of  the  obligation  or  other  liability  upon 
which  the  original  judgment  was  rendered,  and  the  demandant's 
plea  not  averring  that  it  was  such  a  statutory  bond  as  required 
that  there  should  be  a  relator  in  any  action  brought  upon  it,  and 
that  the  relator  should  be  a  party,  having  the  legal  right  to  sue, 
it  must  be  regarded  as  a  common  law  bond  or  liabilit}',  subject 
to  be  sued  on  in  the  names  of  the  payees  without  a  relator,  or 
for  the  benefit  of  the  holder,  or  any  party  entitled  to  the  benefit 
of  it ;  and  whether  W.  was  marshal  or  M.  was  the  administrator, 
is  a  question  in  which  defendant  has  no  interest,  and  it  cannot 
be  raised  by  him  by  plea  in  bar  to  the  plaintift*'s  claim. 

The  scire  facias  stated  that  the  judgment  had  been  suspended 
by  injunction.  This  was  an  unnecessary  allegation,  and  may 
be  treated  as  surplusage,  and  a  plea  that  the  judgment  had  not 
been  suspended  by  injunction  offered  no  bar  to  the  scire  facias. 

The  scire  facias  further  stated  that  the  injunction  had  not 
been  dissolved.  A  plea  that  the  injuction  had  not  been  dis- 
solved is  bad,  and  an  issue  made  upon  it  is  immaterial.  There- 
fore, though  the  court  admits  improper  evidence  iipon  it,  offered 
by  the  plaintiff,  it  is  not  cause  for  reversing  the  judgment. 


Citations  to  the  Code  of  Virginia.  745 

The  pendency  of  an  injunction  to  a  judgment  at  law  will  not 
prevent  the  revival  of  the  judgment  upon  the  death  of  either  the 
plaintiff  or  defendant,  and  the  injunction  operates  upon  the 
judgment  of  the  scire  facias  to  restrain  and  prohibit  the  issue  of 
execution  thereon. 

In  the  case  of  Wilson  et  ux.  vs.  Smith,  22  Grat.,  493,  decided 
August  28,  1872,  it  was  held :  In  a  suit  by  W.  against  S.  for  par- 
tition of  land,  before  any  decree  in  the  cause  W.  dies,  leaving  a 
widow  and  infant  child.  The  suit  may  be  revived  in  their  name, 
and  neither  a  bill  nor  a  scire  Judas  is  necessary,  but  it  may  be 
revived  upon  their  motion  without  notice. 

The  order  of  revival  suggests  the  death  of  "W.,  and  that  the 
suit  be  revived  and  proceeded  in  in  the  name  of  "J.  and  S.,  ad- 
ministrators with  the  will  annexed, Wilson,  infant  son 

and  sole  heir,  and Wilson,  widow  and  devisee  of  said 

John  W.  Wilson,  deceased."  Though  the  administrators  with 
the  will  annexed  were  not  necessary,  yet  it  does  not  harm,  and 
though  the  Christian  names  of  the  infant  child  and  the  widow 
are  omitted,  they  are  sufficiently  described  to  identify  them. 

It  would  have  been  out  of  place  to  have  revived  the  suit  in 
the  name  of  a  next  friend  of  the  infant,  and  an  order  authoriz- 
ing some  person  to  prosecute  the  suit  for  the  infant  might  have 
been  made  in  a  subsequent  order  as  in  the  order  reviving  the 
suit. 

In  the  case  of  Mb  Veigh  vs.  Bank  of  Old  Dominion,  76  Va., 
267. 

Scire  facias. — Neither  declaration  nor  rule  is  necessary  upon 
a  scire  facias  to  revive  a  judgment.  If  scire  facias  is  returnable 
to  rules,  and  defendant  makes  default,  there  should  then  be  an 
award  of  execution,  which,  if  not  set  aside  at  the  next  term,  be- 
comes a  final  judgment  as  of  the  last  day  of  the  term.  No  order 
of  the  court  is  necessary  in  such  case,  but  could  prejudice  no 
one. 

Section  3309. 

In  the  case  of  Stearns  [Executor)  vs.  Richmond  Paper  Manu- 
fictaring  Company,  86  Va.,  1034,  decided  September  17,  1890, 
it  was  held :  Where  a  case  is  revived  at  rules  under  this  section, 
its  revival  constitutes  no  ground  for  a  continuance. 

CHAPTER  CLXII. 

Section  3316. 
In  the  case  of  Bosxoell  vs.  Fiockheart,  8  Leigh,  364,  decided 
May,  1837,  it  was  held:  An  application  by  a  defendant  for  a 
change  of  venue,  on  the  ground  of  general  prejudices  existing 
against  him  in  the  town  where  the  cause  is  to  be  tried,  should  be 
supported  by  the  affidavits  of  the  disinterested  individuals. 


746  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Mc Alexander  vs.  HairstorCs  Executor^  10  Leigh, 
486  (2d  edition,  507),  decided  July,  1839.  An  action  of  slander 
is  commenced  on  the  21st  of  July  in  a  circuit  lourt;  but  the 
judge  of  that  court  being  related  to  one  of  the  parties,  an  order 
is  entered  on  the  27th  of  September,  by  consent  of  the  parties, 
sending  the  case  to  the  county  court.  On  the  20tli  of  Novem- 
ber a  motion  is  made  to  the  county  court  for  a  continuance,  on 
the  ground  that  the  defendant  had  been  confined  to  his  bed  by 
sickness  for  some  time  previous,  and  was  still  so  confined,  so 
that  he  could  not  ^attend  to  the  case  in  person  and  prepare  him- 
self for  trial ;  and  it  is  admitted  by  the  plaintifi"s  counsel  that 
such  had  been,  and  still  is,  the  situation  of  the  defendant.  But 
a  trial  being  nevertheless  urged,  the  court  is  divided  on  the 
motion  for  a  continuance,  and  the  same  being  overruled,  a  ver- 
dict and  judgment  are  rendered  against  the  defendant.  Held : 
The  county  court  erred  in  so  ruling  the  defendant  to  trial  at 
the  term  next  after  the  cause  had  been  transferred  to  that  court, 
and  at  which  it  was  docketed  in  that  court  for  the  first  time. 

In  the  case  of  Spengler  vs.  Davy,  15  Grat.,  381,  decided  July, 
1859,  it  was  held  :  A  cause  which  had  been  pending  in  a  county 
court  for  more  than  a  year  is  called  for  trial,  and  a  motion  by 
the  defendant  for  a  continuance  is  overruled,  and  he  then  moves 
the  court  to  remove  the  case  to  the  circuit  court.  This  motion 
is  properly  overruled. 

In  the  case  of  Hoghead  vs.  Baylor,  16  Grat.,  99,  decided  Sep- 
tember 3,  1860,  it  was  held:  The  fact  that  counsel  believed  that 
a  case  had  been  removed  from  the  county  to  the  circuit  court, 
and  was  therefore  taken  by  surprise,  and  had  not  prepared 
himself  by  examining  the  papers  and  the  law  of  the  case,  the 
original  counsel  being  present  and  prepared,  is  not  cause  for  a 
continuance.  After  cause  is  called  for  trial  in  the  county  court, 
and  continuance  refused,  a  party  is  not  entitled  to  have  it  re- 
moved to  the  circuit  court,  though  it  has  been  pending  more 
than  twelve  months. 

In  the  case  of  Muller,  etc.,  vs.  Bailey,  21  Grat.,  521,  decided 
November  17, 1871,  it  was  held :  A  circuit  court  may  make  an  order 
to  remove  a  cause  to  another  court  whilst  the  cause  is  at  rules. 

In  the  case  of  Town  of  Danville  vs.  Blackioell  [Judge),  80 
Ya.,  38,  decided  January  8,  1885.  Act  directing  that,  on  mo- 
tion, on  twenty  days'  notice  hj  any  party  any  suit  or  proceeding 
pending  in  a  corporation  court  shall  be  removed,  as  of  right,  to 
the  circuit  court  of  said  corporation,  is  not  unconstitutional.  In 
such  a  case  there  was  effectual  trial.  At  next  term  defendant, 
after  notice  under  said  act,  moved  for  the  removal  of  the  case 
to  the  circuit  court,  and  the  corporation  court  denied  the  mo- 
tion.    Held :  Right  of  removal  was  not  waived. 

Mandamus  is  the  remedy  for  refusal  to  remove. 


Citations  to  the  Code  of  Yirginia.  747 

Section  3317. 
lu  the  case  of  Bosioell  vs.  Flockheart,  8  Leigh,  364,  decided 
May,  1837,  it  was  held:  When  a  judge  of  a  circuit  court  is  so 
situated  as  to  render  it  improper,  in  his  judgment,  for  him  to 
preside  at  the  trial  of  a  cause,  the  statute  makes  it  lawful  for 
him  to  remove  the  cause  to  another  circuit.  In  such  case, 
however,  the  propriety  of  removing  or  refusing  to  remove  de- 
pends upon  the  self-consciousness  of  the  judge,  and  an  appel- 
late court  cannot  revise  his  decision. 

CHAPTEE  CLXIIL 

Section  3320. 

The  reference  to  1  H.  &  M.,  10,  is  an  error. 

In  the  case  of  White's  Executors  vs.  Johnson  et  als.,  2  Munf., 
285,  decided  May  11,  1811,  it  was  held:  A  commissioner's  re- 
port, if  erroneous  upon  its  face,  may  be  objected  to  at  the  hear- 
ing of  the  cause,  though  no  exception  be  previously  filed ;  and, 
also,  in  the  appellate  court,  though  no  exception  appear  to  have 
been  taken  in  the  court  below;  but  without  such  exception  it 
cannot  be  impeached  on  grounds,  and  in  relation  to  subjects, 
which  may  be  affected  by  extraneous  testimony.  Whether  in- 
terest ought  to  be  charged  in  an  administration  account  is  a 
question  the  decision  of  which  may  depend  upon  extraneous 
testimony.  A  failure  to  set  forth  in  a  commissioner's  report 
that  notice  was  given  to  the  parties  is  not  an  error  sufficient  to 
reverse  a  decree,  if  no  exception  to  the  report  appear  in  the 
record. 

In  the  case  of  Winston  vs.  Johnson's  Executors,  2  Munf.,  305, 
decided  June  5,  1811,  it  was  held :  Want  of  notice  of  the  time 
and  place  of  a  commissioner's  taking  an  account,  or  the  court's 
acting  upon  the  report  too  soon,  are  not  sufficient  reasons  for  a 
bill  of  review,  such  objections  not  having  been  taken  (as  they 
ought  to  have  been)  before  the  rendition  of  the  decree.  New 
matter  is  no  ground  for  a  bill  of  review,  unless  it  was  discov- 
ered since  the  decree  was  pronounced. 

In  the  case  of  McCandlish  {Administrator)  vs.  Edloe  et  als.,  3 
Grat.,  330,  decided  October,  1846,  it  was  held:  When  a  com- 
missioner, to  whom  accounts  have  been  referred  by  an  inter- 
locutory decree  for  settlement,  gives  notice  to  the  parties,  by 
publication  in  a  newspaper,  of  the  time  and  place  of  his  acting 
upon  the  subject,  an  exception  by  a  party  for  want  of  personal 
notice,  when  that  was  practicable,  ought  not  to  be  entertained, 
unless  he  shows,  by  his  own  affidavit  or  otherwise,  that  he  had 
no  such  information  of  the  contemplated  proceedings  of  the 
commissioner  as  would  have  enabled  him  to  attend.  In  taking 
an  account  the  commissioner  may  take  the  depositions  of  wit- 


748  Citations  to  the  Code  of  Virginia. 

nesses  to  enable  him  to  act  upon  the  subject,  under  his  general 
notice,  and  a  special  notice  is  not  necessar3^ 

When  an  interlocutory  decree  merely  confirms  generally  a  re- 
port containing  alternate  and  conflicting  statements,  it  must  be 
understood  that  the  court  has  reserved  to  itself  the  power  of 
selecting,  by  its  future  decree,  between  such  statements,  and  of 
decreeing  accordingly. 

A  claim  of  a  creditor  not  reported  on  by  the  commissioner 
may  be  directed  to  be  considered  as  a  claim  stated  in  the  re- 
port, and  it  will  be  open  to  all  just  exceptions. 

When  the  real  estate  of  a  testator  is  necessary  for  the  pay- 
ment of  his  debts,  it  is  not  improper  to  direct  an  account  of  the 
rents  and  profits  from  his  death,  for  the  purpose  of  ascertain- 
ing what  rents  and  profits  had  accrued  from  that  period,  and 
by  whom  they  had  been  received,  in  order  to  enable  the  court 
to  decide  by  its  future  decree  what  persons,  if  any,  were  ac- 
countable therefor. 

In  the  case  of  Miller  vs.  Holcornh^s  Executor,  9  Grat,,  665, 
decided  February  24, 1853.  A  commissioner's  report  made  in  a 
cause  had  been  returned  for  more  than  six  years,  and  the  cause 
was  then  taken  up  and  heard,  the  argument  concluded,  and  the 
opinion  of  the  court  pronounced;  and  then  the  party  against 
whom  the  opinion  was  expressed  excepted  to  the  report  for  want 
of  notice.     Held :  That  the  exception  should  be  disregarded. 

In  the  case  of  Hill  et  als.  vs.  JBowyer  et  ah.,  18  Grat.,  364, 
decided  April,  1868,  it  was  held :  In  the  absence  of  any  objec- 
tion in  the  court  below,  an  appellate  court  would  presume  that 
notices  to  take  the  depositions  were  duly  given,  the  con- 
trary not  appearing;  and  an  objection  to  depositions  on  this 
groimd,  where  the  decree  was  by  default,  would  not  be  avail- 
able. The  statute  does  not  limit  the  class  of  cases  in  which  the 
court  may  direct  that  notice  may  be  given  by  publication,  and 
it  is  no  valid  objection  by  a  party  upon  whom  process  in  the 
suit  has  been  served  that  he  did  not  see  or  hear  of  the  notice, 
by  publication,  of  the  taking  of  an  account  by  a  commissioner, 
under  the  order  of  the  court. 

A  defendant  upon  whom  process  has  been  served,  who  wholly 
neglects  his  defence,  or  contents  himself  with  merely  writing  to  a 
lawyer  who  practices  in  the  court  to  defend  him,  without  giving 
him  any  information  concerning  his  defence,  or  inquiring  whe- 
ther he  is  attending  to  the  case,  is  not  entitled  to  relief  against 
a  decree  by  default,  on  the  ground  of  surprise,  however  grossly 
unjust  the  decree  may  be. 

In  the  case  of  Coffman  vs.  Sangton  et  als.,  21  Grat.,  263,  de- 
cided August,  1871,  it  was  held:  Courts  of  equity  have  juris- 
diction in  matters  of  account  involving  the  transactions  and 


Citations  to  the  Code  of  Virginia.  749 

dealings  of  trustees  and  agents,  whenever  it  appears  that  a  dis- 
covery is  necessary,  or  there  are  mutual  accounts  between  the 
parties,  or  the  remedy  at  law  is  not  plain,  simple,  and  free  from 
difficulty. 

Though  the  notice  of  taking  depositions  and  taking  the  ac- 
count by  the  commissioner  is  not  tiled,  yet,  as  the  record  says 
the  deposition  was  taken  pursuant  to  notice,  and  it  appears  that 
the  defendants  claimed  commissions  before  the  commissioner,  it 
will  be  presumed  in  the  appellate  court,  in  the  absence  of  proof 
to  the  contrary,  that  notice  was  given. 

The  report  of  a  commissioner  having  been  completed  on  the 
10th  of  April,  1869,  and  the  decree  made  on  the  22d  of  Octo- 
ber following,  in  the  absence  of  anything  showing  the  contrary 
it  will  be  presumed  by  the  appellate  court  that  the  report  and 
account  were  returned  and  acted  on  according  to  the  require- 
ments of  the  statute. 

In  the  case  of  Dillard  vs.  Krise,  86  Va.,  410,  decided  Decem- 
ber 5,  1889,  it  was  held :  When  notice  of  taking  an  account  is 
ordered  to  be  given  by  publication  in  a  newspaper,  there  miist 
be  at  least  twenty-eight  days  between  the  first  insertion  and  the 
day  of  taking  the  account. 

In  the  case  of  Walkers  Executors  vs.  WalJce,  2  Wash.,  195 
(2d  edition,  251),  decided  at  April  term,  1796,  it  was  held:  Pay- 
ments by  a  former  to  a  subsequent  guardian  in  depreciated 
money  should  be  accounted  for  at  their  nominal  amount,  and 
are  not  subject  to  the  scale  of  depreciation. 

For  2  Munf.,  285,  see  supra,  this  section. 

In  the  case  of  Garrett  {Executor  of  Allen)  vs.  Carr  and  Wife 
et  als.,  3  Leigh,  407  and  413,  decided  February,  1832.  Execu- 
tor's accounts  are  audited  before  commissioners  of  the  county 
court,  the  legatees  being  present  at  such  settlement  thereof; 
these  accounts  are  returned  to  the  court  proved  and  recorded. 
Held :  The  presence  of  the  legatees  at  the  settlement  is  no  ob- 
jection to  a  bill  in  chancery  to  surcharge  and  falsify  the  ac- 
counts so  settled. 

In  the  case  of  Cookus  et  als.  vs'.  Peyton's  Executors  et  als.,  1 
Grat.,  431,  it  was  held,  p.  452 :  An  error  appearing  on  the  face 
of  a  report  will  be  corrected,  though  no  exception  has  been 
taken  to  it  in  the  court  below. 

In  the  case  of  WiWs  Administrator  vs.  Dunn's  Administra- 
tor ;  Masons  Executor  vs.  Dunns  Administrator,  5  Grat.,  384, 
decided  January,  1849,  it  was  held,  pp.  411-12:  A  commis- 
sioner's report,  purporting  to  be  made  in  obedience  to  an  order 
of  the  court  having  made  the  report  the  basis  of  its  decree,  and 
there  not  appearing  to  have  been  any  question  of  the  commis- 
sioner's authority  in  the  court  below,  the  appellate  court  must 


750  Citations  to  the  Code  of  Virginia. 

presume  that  it  was  made  by  proper  authority,  though  no  order 
of  account  is  in  the  record. 

In  the  case  of  French  vs.  Townes^  10  Grat.,  514,  decided  Octo- 
ber, 1853,  it  was  held,  p.  526 :  In  the  absence  of  any  proof  to 
the  contrary,  it  was  proper  for  the  commissioner,  in  stating  the 
amount  of  the  different  debts  secured  by  the  deed,  to  take  the 
amount  stated  in  the  deed. 

In  the  case  of  Sir  Jonathan  Beckwith  vs.  Beckwith  Butler 
et  als.,  1  Wash.,  224,  decided  at  the  fall  term,  1793,  it  was  held: 
The  answer  of  a  defendant  in  chancery  is  not  evidence  where 
it  asserts  a  right  affirmatively  in  opposition  to  the  plaintiff's 
demand.  In  such  a  case  he  is  as  much  bound  to  establish  it  by 
indifferent  testimony  as  the  plaintiff  is  to  sustain  his  bill. 

In  the  case  of  Jones  {Executor')  vs.  ^yatson,  3  Call,  253  (2d  edi- 
tion, 222),  decided  October  14,  1802,  it  was  held :  After  two  re- 
ferences before  commissioners  appointed  by  the  county  court  to 
settle  an  administration  account,  and  one  reference  to  the  com- 
missioner of  the  high  court  of  chancery,  no  exception  for  the 
want  of  credits  mil  be  allowed  here  which  was  not  made  at  one 
of  the  examinations. 

In  the  case  of  Perkins  vs.  Powers  [Executor),  2  H.  &  M., 
420-22,  decided  May  5, 1808,  it  was  held :  The  court  of  appeals 
will  not  enter  into  an  investigation  of  an  account  taken  by  di- 
rection of  a  court  of  chancery  when  either  no  exception  to  the 
commissioner's  report  was  taken  in  the  court  below,  or  not  taken 
in  such  form  as  to  enable  this  court  to  decide  on  the  principle 
of  law  or  equity  on  which  the  item  excepted  to  was  admitted  or 
rejected. 

For  2  Munf.,  285,  see  supra,  this  section. 

lu  the  case  of  Si?nmo7is  vs.  Simmoiis^s  Administrator,  33 
Grat.,  451,  decided  July,  1880,  it  was  held,  pp.  456-57 :  The 
answer  of  a  defendant  in  which  no  reference  is  made  to  a  com- 
missioner's report  will  not  be  regarded  as  an  exception  to  said 
report,  and  where  there  are  no  errors  on  the  face  of  the  report, 
and  no  exceptions  taken  thereto  in  the  court  below,  they  can- 
not be  taken  for  the  first  time  in  the  appellate  court. 

In  the  case  of  Kraker  vs.  Shields,  20  Grat.,  377,  decided 
March,  1871.  In  November,  1862,  S.  sells  to  K.  a  house  and 
lot  in  Richmond  for  $14,500,  of  which  $4,500  is  paid  in  cash, 
and  notes  with  interest  for  the  balance  are  given,  payable  in 
one,  two,  three,  and  four  years,  with  a  deed  of  trust  to  secure 
them.  The  cash  payment  and  first  and  second  notes  are  paid 
in  Confederate  money;  the  third  is  paid  four  months  before  it 
fell  due  by  a  compromise,  S.  taking  for  it  $2,000  in  United 
States  currency.  Bill  to  enjoin  the  sale  of  the  house  and  lot 
for  the  payment  of  the  fourth  note  alleges  that  it  was  given  with 


Citations  to  the  Code  of  Virginia.  751 

reference  to  Confederate  currency  as  the  standard  value,  and 
prays  that  S.  may  be  required  to  receive  payment  according  to 
the  value  of  that  money  at  the  time  of  the  contract.  S.  denies 
this  was  the  contract,  and  says  he  was  to  be  paid  in  the  cur- 
rency of  the  time  the  note  fell  due,  and  asks  the  court  to  adju- 
dicate the  question.  Held:  The  court  may  refer  the  case  to  a 
commissioner  to  inquire  whether  a  contract  was  made  with  refer- 
ence to  Confederate  money  as  the  standard  of  value,  or  whether 
the  notes  were  to  be  paid  in  the  currency  of  the  time  they 
fell  due. 

It  is  not  a  case  in  which  the  court  should  have  directed  an 
issue,  and  this  especially  as  there  was  no  conflict  of  testimony 
when  the  case  was  referred  to  a  commissioner. 

The  interest  being  included  in  the  note,  if  there  is  a  decree 
for  the  payment  of  the  note  it  is  proper  to  decree  interest  on 
the  whole  amount. 

The  court  being  of  the  opinion  that  the  note  should  be  paid 
in  the  currency  of  the  time  the  note  fell  due,  may  decree  in 
favor  of  S.  against  K.  for  the  amount.  It  was  irregular  after 
decreeing  in  favor  of  S.  to  dismiss  the  bill,  and  the  appellate 
court  will  correct  the  decree  in  this  respect,  and  affirm  it  with 
costs. 

The  decree  should  reserve  liberty  to  S.  to  apply  to  the  court 
by  motion  or  petition  in  the  cause  for  a  sale  of  the  house  and 
lot  under  the  trust,  if  the  personal  decree  against  K.  failed  to 
produce  the  money.  This,  too,  the  appellate  court  will  correct, 
and  affirm  the  decree. 

In  the  case  of  Boweris  Administrators  vs.  Bowers,  29  Grat., 
697,  decided  January  17,  1878,  it  was  held,  p.  700 :  An  attorney 
employed  in  a  cause  is  not  a  competent  commissioner  to  take  an 
account  ordered  in  the  cause. 

In  the  case  of  Stuart,  Palmer  &  Co.  vs.  Hendricks  et  als.,  80 
Va.,  601,  decided  June  25,  1885,  it  was  held :  The  principle  is 
well  established  that  when  a  question  of  fact  is  referred  to  a 
commissioner,  depending  upon  the  testimony  of  witnesses  con- 
flicting in  their  statements  and  differing  in  their  recollection,  the 
court  must  of  necessity  adopt  his  report,  unless  in  a  case  of 
palpable  error  or  mistake. 

In  the  case  of  Magarity  vs.  Shipman,  82  Va.,  784,  decided 
January  20, 1887,  it  was  held :  When  question  of  fact  is  referred 
to  commissioner,  depending  upon  the  conflicting  statements  of 
witnesses,  the  court  must  adopt  his  report,  unless  there  be  pal- 
pable error  and  mistake.  This  is  the  case  cited  from  11  Va. 
Law  Journal,  214. 

In  the  case  of  Stimpson  vs.  Bishop,  82  Va.,  190,  decided  July 
1,  1886,  it  was  held:  Where  report  based  on  account  of  long 
standing  and  great  confusion  is  confirmed  by  the  court  below 


752  Citations  to  the  Code  of  Vikginia. 

it  will  not  be  disturbed  here  unless  error  is  palpable.     This  is 
the  case  cited  from  10  Va.  Law  Journal,  543. 

Section  3322. 
In  the  case  of  Coghill  vs.  Boyd,  79  Va.,  1,  decided  January 
24,  1884,  it  was  held :  It  is  a  well-established  practice  for  the 
court  to  instruct  the  master  as  to  the  principle  upon  which  ac- 
counts should  be  restated. 

Section  3325. 

In  the  case  of  Armstrong's  Administrator  vs.  Pitts,  13  Grat., 
235,  decided  March  8,  1856,  it  was  held:  A  cause  is  heard  upon 
a  report  of  a  commissioner,  which  had  not  been  returned  for 
the  legal  period ;  the  decree  being  merely  interlocutory,  the  er- 
ror should  have  been  corrected  by  application  to  the  court  be- 
low; and  it  is  not  ground  for  an  appeal,  unless,  upon  applica- 
tion, the  court  below  refuses  to  correct  it. 

In  the  case  of  Strangers  Administrator  vs.  Strange  et  als.,  76 
Ya.,  240  and  242,  decided  March  19,  1882,  it  was  held :  Where 
cause  was  heard  prematurely  on  a  commissioner's  report  in  the 
court  below,  but  no  exceptions  appear  in  the  record,  exception 
cannot  be  taken  in  appellate  court,  unless  for  errors  appearing 
on  face  of  record,  and  the  hearing  -will  be  treated  as  having 
been  by  consent. 

CHAPTEK  CLXIV. 

Section  3328. 
In  the  case  of  Legrand  vs.  Hampden- Sidney  College,  5  Munf,, 
324,  decided  January  21,  1817,  it  was  held:  Though  private 
acts  of  the  assembly  may  be  given  in  evidence  without  being 
specially  pleaded,  they  are  not  to  be  taken  notice  of  judicially 
by  the  court,  as  public  acts  are,  but  must  be  exhibited  as  docu- 
ments, if  not  admitted  by  consent  of  parties. 

Section  3330. 

In  the  case  of  Taylor's  Administrator  vs.  The  Bank  of  Alex- 
andria, 5  Leigh,  471,  decided  November,  1834,  it  was  held,  p. 
476 :  The  printed  copies  of  the  acts  of  Congress,  distributed  to 
the  executives  of  the  several  States  to  be  distributed  among  the 
people,  are  proper  evidence  of  the  statutes  therein  contained, 
without  other  authentication. 

A  statute  is  alleged  in  pleading  to  have  been  passed  by  Con- 
gress, to-wit,  in  1811,  but  the  statute  given  in  evidence  bears 
date  in  1810 ;  as  the  date  is  pleaded  under  a  videlicet,  no  error. 

In  the  case  of  Dickinson  vs.  IToome's  Administrator  et  als., 
8  Grat.,  353,  decided  January,  1852.  The  court,  on  page  409, 
held:    A  foreign  law,  whether  written  or   unwritten,  may  be 


I 


Citations  to  the  Code  of  Virginia.  753 

proved  by  a  person  who  is  learned  in  that  law,  without  laying 
any  foundation  for  the  introduction  of  secondary  testimony. 

In  the  case  of  Warner  vs.  Commonwealth,  2  Ya.  Cases,  95, 
decided  by  the  General  Court,  November,  1817,  it  was  held:  A 
transcript  of  a  statute  of  another  State,  authenticated  by  the 
certificate  of  the  Secretary  of  the  Commonwealth,  under  his 
hand  and  seal,  accompanied  by  a  declaration  of  the  governor, 
under  the  great  seal  of  the  Commonwealth,  that  he  is  the  secre- 
tary, and  that  full  faith  and  credit  ought  to  be  given  to  his 
official  acts  accordingly,  is  proper  evidence  to  be  submitted  to 
the  jury  that  such  copy  of  the  act  is  the  law  of  said  State. 

In  the  case  of  Hunter  vs.  I'ulcher,  5  Rand.,  126,  decided 
March,  1827,  it  was  held :  A  law  of  another  State  is  sufficiently 
authenticated  under  the  act  of  Congress,  if  it  has  the  seal  of  the 
State  affixed  thereto ;  and  the  particular  officer  entitled  to  affix 
the  seal  depends  upon  the  regulations  of  the  several  States, 
respectively. 

Where  a  party  in  a  suit  in  Virginia  relies  on  the  law  of  another 
State  to  support  his  claim,  he  may  produce  an  authenticated 
copy  of  the  section  only  on  which  he  relies,  without  a  copy  of 
the  whole  law. 

Section  3334. 

In  the  case  of  Burk's  Executor  vs.  Tregg's  Executor,  2  Wash., 
276  and  281  (1st  edition,  p.  215),  decided  at  the  October  term, 
1796,  it  was  held :  Upon  a  plea  of  nul  tiel  record,  if  the  record 
be  of  the  same  court  a  copy  of  it  ought  not  to  be  given  in  evi- 
dence, but  the  original  ought  to  be  produced  for  inspection. 

In  the  case  of  Hord  vs.  Dishman,  5  Call,  279,  decided  No- 
vember, 1804,  it  was  held  :  If  the  defendant  is  taken  sick  on  his 
way  to  the  trial  of  the  cause,  and  is  thereby  prevented  from 
making  an  affidavit  that  the  original  deeds  are  lost,  and  for 
want  of  such  affidavit  the  court  refuses  to  receive  copies  of  the 
deeds  in  evidence,  the  court  of  chancery  may  relieve  against  the 
verdict  and  judgment  obtained  by  the  plaintiff. 

In  the  case  of  Anderson  vs.  Dudley,  5  Call,  529,  decided  Oc- 
tober, 1805,  it  was  held:  If  a  trial  upon  the  issue  of  nul  tiel 
record  be  in  the  same  court  where  the  judgment  was  rendered, 
it  is  error  to  inspect  a  transcript  only,  instead  of  the  original 
record. 

In  the  case  of  Rowletts  vs.  Daniel,  4  Munf.,  473,  decided  Oc- 
tober 19,  1815,  it  was  held:  A  legally  certified  copy  of  an 
ancient  deed,  recorded  on  the  grantor's  acknowledgment,  and 
accompanied  with  possession  of  the  land  by  the  grantee,  ought 
to  be  received  as  evidence,  without  any  proof  that  the  original 
is  lost  or  destroyed. 

In  the  case  of  Baker  vs.  Preston  et  ah.,  1  Va.  (Gilmer),  235,  de- 
cided June  20,  1821,  it  was  held  :  The  copy  of  a  deed  acknow- 
48 


754  Citations  to  the  Code  of  Vikginia. 

ledged  by  the  grantor  before  justices,  by  them  certified  to  the 
clerk  for  record,  and  by  him  certified  to  be  a  true  copy,  is  ad- 
missible as  primary  evidence,  equivalent  to  the  original. 

The  books  kept  by  the  treasurer  are  conclusive  evidence  of 
the  balance  actually  in  the  treasury  at  any  given  time,  both 
against  the  treasurer  and  his  sureties,  without  being  pleaded  as 
an  estoppel  so  as  to  charge  them  with  balances  carried  forward 
from  year  to  year  as  if  those  balances  were  actually  on  hand. 

In  the  case  of  Ben  et  als.  vs.  Peete,  2  Rand.,  539,  decided 
June,  1824,  it  was  held :  The  copy  of  a  deed  may  be  read  in 
evidence,  upon  the  oath  of  a  party  that  he  had  searched  the  re- 
cords in  the  clerk's  office,  and  all  other  places  where  he  sup- 
posed that  the  original  deed  might  probably  be  found,  and  had 
not  been  able  to  find  the  original. 

A  certified  copy  of  a  deed  recorded  upon  acknowledgment  of 
the  grantor,  not  required  by  law  to.  be  recorded,  is  evidence 
against  the  grantor  and  all  claiming  under  him  subseqxient  to 
acknowledgment.  But  it  is  not  evidence  against  any  person  de- 
riving title  from  the  grantor  before  the  acknowledgment. 

In  the  case  of  Gibson  vs.  The  Cornmonwealtk,  2  Va.  Cases, 
111,  decided  by  the  General  Court,  November,  1817,  it  was 
held:  A  copy  of  a  judgment  of  the  General  Court  (upon  an  ad- 
journed question),  attested  by  the  clerk,  his  attestation  being 
proved,  is  sufficient  evidence  before  the  circuit  court  to  prove 
what  it  purports  to  be. 

In  the  case  of  White  vs.  Clay's  Executors,  7  Leigh,  68,  decided 
January,  1836,  it  was  held :  On  the  trial  of  an  action  of  debt  on 
an  injunction  bond,  extracts  from  the  record  of  the  injunction 
cause,  of  the  decrees  iu  the  cause,  are  competent  and  sufficient 
evidence  without  producing  the  whole  record. 

In  the  case  of  PollarcTs  Heirs  vs.  Lively,  4  Grat.,  73,  decided 
July,  1847,  it  was  held :  A  deed  acknowledged  or  proved  before 
a  hustings  or  a  county  court,  which  conveys  land  in  another 
county,  and  thereupon  ordered  to  be  certified  to  the  court  of 
the  county  in  which  the  land  lies,  was,  upon  this  certificate,  re- 
corded in  the  General  Court,  when  deeds  were  authorized  to  be 
recorded  in  that  court.  A  copy  of  the  deed,  certified  from  the 
clerk's  office  of  the  General  Court,  is  competent  evidence  in 
place  of  the  original. 

Copies  of  surveys  of  waste  and  unappropriated  lands,  and  of 
patents  from  the  register's  office,  are  competent  evidence  in 
place  of  the  originals. 

Upon  the  question  of  the  identity  of  the  patentee  with  the 
ancestor  of  the  demandants  in  a  writ  of  right,  the  survey  on 
which  the  patent  issued,  and  the  assignment  thereon,  and  the 
surveys  and  patents  of  lands  in  the  neighborhood  of  the  land 
in  controversy,  may  be  competent  evidence  for  the  tenant  to 


k 


Citations  to  the  Code  op  Virginia.  755 

disprove  the  identity  of  the  patentee  and  the  ancestor  of  the 
demandants. 

In  the  case  of  Usher's  Heirs  vs.  Pride,  15  Grat.,  190,  decided 
Jnlv,  1858,  it  was  held :  A  certificate,  purporting  to  be  made 
by  the  auditor  of  the  State,  of  land  forfeited  for  the  non-pay- 
ment of  taxes,  being  in  the  usual  form  in  which  he  certifies 
papers  from  his  office,  is  evidence  of  the  execution  of  such  cer- 
tificate, and  of  the  official  character  of  the  paper,  and  also  of 
the  facts  therein  contained.  Though  such  certificate  was  made 
in  1844,  yet,  it  having  been  offered  in  evidence  in  1856,  it  is  a 
prima  facie  evidence  by  the  act,  though  said  act  was  passed 
after  the  certificate  was  made. 

In  the  case  of  Ballard  vs.  Thomas  <&  Ammon,  19  Grat.,  14, 
decided  November  14,  1868,  it  was  held:  The  original  order- 
book  of  a  county  court  is  competent  evidence  wherever  a  certi- 
fied copy  would  be  evidence.  The  original  order-book  may  be 
proved  to  be  such  by  a  deputy  clerk,  or  any  other  person  who 
can  identify  it. 

In  the  case  of  Effinger  vs.  Hall,  81  Va.,  94,  decided  Novem- 
ber 19,  1885,  it  was  held :  Original  will  and  will-book  were  de- 
stroyed, and  a  copy,  previously  made  from  said  will-book  and 
exhibited  in  a  suit,  having  been  withdrawn  by  leave  and  re- 
corded, a  copy  from  the  copy  thus  recorded  must  be  taken, 
prima  facie,  as  a  true  copy  of  the  will. 

Section  3336. 
In  the  case  of  Corbett  vs.  Nutt  {Trustee),  18  Grat.,  624,  de- 
cided April,  1868,  it  was  held :  Plaintiff  in  unlawful  detainer 
proves  he  deposited  the  original  will  of  his  testatrix  with  the 
clerk  of  the  Circuit  Court  of  Richmond  in  1864.  He  also  proves 
that  the  witness  had  inquired  for  said  paper  of  the  said  clerk  at 
his  office  in  the  city  of  Richmond,  in  whose  custody  the  said 
original  paper  had  been  left;  that  said  clerk,  at  his  request, 
made  search  for  said  paper,  and  reported  it  had  been  lost  out 
of  his  possession  and  destroyed  at  the  time  of  the  fire  in  April, 
1865.  In  the  absence  of  all  suspicion  of  fair  dealing,  this  testi- 
mony is  sufficient  to  let  in  a  copy  of  the  will,  of  the  accuracy  of 
which  copy  there  is  no  question.  Upon  proof  that  the  will  had 
been  regularly  admitted  to  probate  in  the  Circuit  Court  of  Rich- 
mond, such  proof  of  the  loss  and  destruction  of  the  record  will  au- 
thorize the  admission  of  an  official  copy  of  the  record,  certified 
by  the  clerk;  and  this  official  copy  having  been  admitted  to 
probate  in  the  Orphans'  Court  of  the  District  of  Columbia,  an 
official  copy  from  that  office  is  admissible. 

Section  3339. 
In  the  case  of  TalUferro  vs.  Pryor,  12  Grat.,  277,  decided 
April  18,  1855,  it  was  held :  The  clerk's  office  of  a  county  court. 


756  Citations  to  the  Code  of  Virginia. 

with  all  the  records  therein,  having  been  consumed  by  fire,  a- 
paper  purporting  to  be  an  official  copy  of  a  will  of  record  in 
that  office,  and  to  be  certified  by  a  former  clerk  of  the  court,  is 
admitted  to  record  under  the  statute.  The  act  of  the  clerk  ad- 
mitting the  paper  to  record  is  conclusive  upon  the  question  of 
whether  the  paper  is  what  it  purports  to  be ;  and  evidence  to 
prove  that  the  copy  was  not  certified  by  the  clerk  whose  name 
is  affixed  to  the  certificate,  but  by  another  person  who  was  not 
authorized  to  make  the  certificate,  is  inadmissible  in  a  collateral 
action. 

See  the  case  of  Effinger  vs.  Hall,  81  Va.,  94,  cited  ante,  Sec- 
tion 3334. 

Section  3340. 

In  the  case  of  Smith  vs.  CarteVy  3  Rand.,  167,  decided  Feb- 
ruary, 1825,  it  was  held :  Where  a  will  has  been  regularly  proved 
in  a  court  of  probate,  and  afterwards  destroyed  by  the  enemy,, 
with  the  book  in  which  it  was  recorded,  its  contents  may  be 
proved  by  parol  evidence.  The  remedy  here  pointed  out  is 
only  cumulative,  and  does  not  deprive  a  party  of  his  remedy  at 
common  law. 

Section  3342. 

In  the  case  of  Buford  vs.  Buford,  4  Munf.,  241,  decided  Jan- 
uary 6, 1814,  it  was  held  :  A  record  legally  authenticated  of  the 
proceedings  of  a  court  of  competent  authority  in  any  other  State 
of  the  United  States  is  conclusive  evidence  in  the  courts  of  this 
State  to  show  that  a  judgment  was  rendered,  and  that  the  party 
was  compellable  to  pay  the  amount  recovered  against  him  ;  but 
it  may  be  opposed  by  proof  of  fraud  or  collusion,  or  of  subse- 
quent payments  or  discounts. 

The  only  competent  evidence  that  an  award,  made  pendente 
lite,  was  afterwards  set  aside  on  exception  taken,  is  a  transcript 
of  the  record  thereof  duly  authenticated. 

In  the  case  of  Petermans  vs.  Laws,  6  Leigh,  523,  decided 
July,  1835,  it  was  held:  Office  copies  of  deeds  registered  in 
another  State  are  not  admissible  as  evidence  in  this  State,  un- 
less duly  authenticated  according  to  the  laws  of  the  United 
States. 

The  statute  of  Virginia  concerning  the  authentication  of 
foreign  deeds  applies  to  the  original  deeds,  not  copies. 

An  office  copy  of  a  deed  registered  in  North  Carolina  is  not 
admissible  as  primary  evidence  in  this  State,  unless  there  be 
some  statute  of  North  Carolina  making  it  so. 

In  the  case  of  Gornto  vs.  Bonney,  7  Leigh,  234,  decided  Feb- 
ruary, 1836.  A  copy  of  a  will  and  of  the  probate  thereof  in  a 
court  of  North  Carolina  is  offered  in  evidence;  it  is  authenti- 
cated by  a  certificate  of  the  clerk  of  the  court  under  his  seal  of 


Citations  to  the  Code  of  Virginia.  757 

office,  and  by  a  certificate  of  the  presiding  justice  of  the  court 
that  the  clerk's  certificate  (not  his  attestation)  is  in  due  form. 
Held:  The  authentication  is  proper  according  to  the  act  of 
Congress  of  May  26,  1790,  and  that  act,  not  the  act  of  March 
27,  1804,  is  appKcable  to  the  case;  and  therefore  the  copy  is 
proper  evidence  in  our  courts. 

Section  3344. 

In  the  case  of  Kidd's  Administrator  ys.  Alexander's  Adminis- 
trator, 1  Kand.,  456,  decided  May,  1823,  it  was  held:  The  cer- 
tificate of  a  notary  public  that  a  release  was  acknowledged  by  a 
party  to  be  his  act  and  deed  ought  not  to  be  received  in  evi- 
dence, but  the  deposition  of  the  notary  public,  or  some  equiva- 
lent testimony,  ought  to  be  produced  to  the  court. 

See  the  case  of  Petermans  vs.  Laws,  6  Leigh,  523,  cited  ante, 
Section  3342. 

Section  3346. 

In  the  case  of  Johnston  and  Wife  vs.  Slater  ei  als.,  11  Grat., 
321,  decided  July,  1854,  it  was  held :  A  husband  is  not  a  com- 
petent subscribing  witness  to  a  deed  executed  during  the  mar- 
riage, by  which  real  estate  is  conveyed  to  the  wife,  either  for 
the  purpose  of  proving  due  execution  of  the  deed  when  called 
in  question,  or  for  the  purpose  of  having  it  admitted  to  record. 

A  deed  admitted  to  record  upon  proof  by  the  subscribing  wit- 
nesses, one  of  whom  was  the  husband  of  the  grantee,  is  null  and 
void  as  to  creditors,  not  having  been  duly  recorded. 

In  the  case  of  William,  and  Mary  College  vs.  Powell  et  als.., 
12  Grat.,  372,  decided  April,  1855,  it  was  held,  p.  382 :  A  post- 
nuptial settlement  is  made  by  a  husband  upon  his  wife,  the  wife 
afterwards  dies,  and  then  a  bill  is  filed  by  a  creditor  of  the  hus- 
band against  her  children  to  set  aside  the  deed  as  fraudulent 
as  to  the  creditor.  The  husband  is  not  a  competent  witness 
to  prove  the  consideration  upon  which  the  settlement  was 
made. 

In  the  case  of  Murphy's  Administrator  et  als.  vs.  Carter  et 
als.,  23  Grat.,  477,  decided  June,  1873,  it  was  held,  p.  487:  A 
husband  whose  wife  is  entitled  to  a  distributive  share  of  a 
deceased  legatee  of  the  testator  is  not  a  competent  witness  to 
prove  that  certain  debts  paid  by  the  administrator  were  paid 
out  of  the  proceeds  of  the  land,  so  as  to  increase  the  amount  for 
which  the  sureties  are  liable. 

The  administrator  whose  wife  is  one  of  said  distributees  is 
not  equally  interested  on  both  sides  so  as  to  render  him  a  com- 
petent 'witness  for  this  purpose. 

In  the  case  of  Warwick  vs.  Warwick  et  als.,  31  Grat.,  70  and 
77,  decided  November,  1878.     D.  and  J.  in  1858  sold  and  con- 


758  Citations  to  the  Code  of  Virginia. 

veyed  to  W.  a  tract  of  land  for  $42,500,  payable  in  fifteen  years 
with  interest  payable  annually,  and  on  the  same  day  W.  con- 
veyed the  land  and  another  tract  called  R,  in  trust  to  secure  the 
payment  of  the  debt,  and  it  was  provided  in  the  deed  that  when 
$15,000  of  the  principal  of  the  debt  was  paid  the  lien  on  R. 
should  cease  and  be  released.  In  1862  W.  having  ascertained 
that  J.,  the  holder  of  this  bond,  would  receive  Confederate 
money  in  payment  of  his  debt,  sold  land  he  held  as  trustee  of 
his  wife  and  children,  and  paid  J.  $21,000.  One  payment  of 
$2,900  was  made  by  W.  on  the  2d  of  May,  1863,  on  the  princi- 
pal of  the  debt  out  of  the  trust  fund  of  his  wife  and  children. 
Between  the  recording  of  the  deed  of  trust  and  said  payment  by 
W.  four  judgments  had  been  recovered  against  W.  Held :  W. 
is  not  a  competent  witness  to  prove  his  payments  of  the  debt 
made  out  of  the  trust  fund  of  his  wife  and  children,  and  this 
though  the  objection  to  his  competency  was  not  made  until  four 
questions  had  been  put  to  him  on  his  examination  in  chief. 

In  the  case  of  Frank  &  Adler  vs.  Lilienfeld  et  als.,  33  Grat., 
377,  decided  July,  1880,  it  was  held :  Where  the  object  of  a  bill 
is  merely  to  subject  the  separate  estate  of  a  wife,  and  her  hus- 
band is  made  a  formal  party  only,  she  is  a  competent  witness  in 
the  case,  and  the  plaintiffs  are  also.  And  an  answer  filed  by 
the  husband,  although  responsive  to  the  bill,  cannot  be  used  as 
evidence  for  the  wife  and  against  the  plaintiffs,  whilst  that  filed 
by  her  can  be  so  used,  so  far  as  its  statements  are  responsive 
and  based  on  facts  within  her  own  knowledge. 

In  the  case  of  Fink  Brother  c&  Co.  vs.  Denny  et  als.,  75  Ya., 
663,  decided  September,  1881,  it  was  held,  p.  669 :  Every  post- 
nuptial settlement,  when  the  settler  is  indebted,  is,  as  against 
his  creditors,  fraudulent  and  void ;  and  every  settlement  will  be 
taken  to  be  voluntary  unless  those  claiming  under  it  can  show 
that  it  was  made  for  valuable  consideration.  In  such  a  case, 
when  a  deed  charges  that  a  bill  was  voluntary  and  fraudulent, 
the  answer  of  husband  and  wife  denying  the  fraud  and  setting 
up  the  defence  of  valuable  consideration  is  not  evidence  for  the 
respondents,  but  the  defence  must  be  established  by  proof. 

In  the  case  of  Hayes  and  Mife  vs.  Mutual  Protection  Associa- 
tion, 76  Va.,  225. 

1.  Husband  and  Wife. — By  common  law  they  cannot  testify 
for  or  against  each  other,  but  each  may  testify  in  his  or  her  own 
behalf. 

2.  Idem. — Married  Women's  Act. — Under  this  act  all  pro- 
perty acquired  before  or  after  marriage  by  J^tne  is  for  her 
separate  use.  Suit  to  recover  it  is  for  her  sole  benefit,  though 
she  is  required  to  join  her  husband  in  it;  he  has  no  interest  in 
it,  and  she,  not  he,  is  bound  for  the  costs.  She  is  a  competent 
witness  in  the  suit. 


Citations  to  the  Code  of  Virginia.  759 

In  the  case  of  Smith  vs.  Bradford,  76  Va.,  758. 

3.  Notwithstanding  the  death  of  his  wife,  B.  would  be  incom- 
petent to  testify  for  or  against  the  settlement  on  his  wife. 

The  reference  to  76  Va.,  769,  is  an  error. 

In  the  case  of  Burton  vs.  Mill  et  als.,  78  Va.,  468,  decided 
March  13,  1884,  it  was  held :  When  husband  and  wife  are  both 
parties,  and  interested  in  the  results  of  a  suit,  neither  is  a  com- 
petent witness. 

In  the  case  of  Parley  et  al.  vs.  Tillar,  81  Va.,  275,  decided 
January  7, 1886,  it  was  held :  Under  act  approved  April  4, 1877, 
a  married  woman  may  sue  and  be  sued  on  her  contracts,  as  to 
her  separate  property,  and  as  sole  trader,  just  as  if  she  was  a 
feme  sole;  but  her  husband  must  be  joined  with  her  in  the  suit. 
In  such  suit  she  is  a  competent  witness  for  herself,  but  he  is 
not  for  her. 

In  the  case  of  Perry  and  Wife  vs.  Buby  et  als.,  81  Va.,  317, 
decided  January  7,  1886,  it  was  held :  Where  husband  and  wife 
are  both  parties,  and  interested  in  the  result  of  suit,  neither  is  a 
competent  witness. 

In  the  case  of  Marks  et  als.  vs.  Spencer,  81  Va.,  751,  decided 
April  22,  1886,  it  was  held :  Though  wife  be  dead,  husband  is 
not  competent  to  prove  what  was  the  consideration  of  a  post- 
nuptial settlement  on  her. 

In  the  case  of  iV  g&  W.  R.  B.  Co.  vs.  Prindle  et  ux.,  82  Va., 
122,  decided  June  24,  1886,  it  was  held :  By  common  law  (un- 
altered by  this  section),  husband  and  wife  cannot  testify  for  or 
against  each  other.  By  statute,  each  may  testify  in  his  or  her 
own  behalf.  Under  the  separate  property  acts  all  property  ac- 
quired by  the  feme  covert  during  the  coverture  in  any  of  the 
modes  specified  in  the  act,  is  her  separate  estate.  She  may 
sue  or  be  sued  as  if  she  were  a  ferne  sole  as  to  her  separate 
property,  or  as  a  sole  trader,  but  her  husband  must  be  joined 
with  her. 

In  such  suit  she  is  a  competent  witness  for  herself,  yet  he  is 
not  for  her.  But  damages  for  injuries  to  wife's  person  are  not 
within  that  act,  and  are  not  her  separate  property;  he  has  an  in- 
terest in  them,  and  in  suits  to  recover  such  damages  she  is  not 
competent  to  testify. 

In  the  case  of  Lindsay  vs.  McCormick  et  als.,  82  Va.,  479, 
decided  October  8,  1886,  it  was  held :  One  who  is  trustee  for  his 
wife  is  not  a  competent  witness  to  prove  his  payments  of  the 
price  of  property  purchased  by  him  as  such  trustee  out  of  the 
trust  fund,  and  he  being  incompetent,  so  likewise  is  the  com- 
missioner to  whom  the  alleged  payments  were  made. 

In  the  case  of  Nicholas  vs.  Austin,  82  Va.,  817,  decided  Jan- 
uary 27,  1887,  it  was  held:  In  suit  by  wife  for  her  separate 


760  Citations  to  the  Code  of  Virginia. 

«state,  husband  joined  for  conformity,  and  not  bound  for  costs, 
wife  is  competent  to  testify  in  lier  own  behalf,  but  he  is  not  for 
her. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  170. 

In  the  case  of  Booth  vs.  McJilton,  82  Va.,  827,  decided  Jan- 
uary 27,  1887,  it  was  held:  Officer  before  whom  grantor  ac- 
knowledged deed  is  not  agent  of  the  grantee,  nor  party  to 
transaction,  so  as,  the  grantee  being  dead,  to  allow  grantor  to 
testify. 

This  is  the  case  cited  from  11  Va.  Law  Journal. 

In  the  case  of  Norfolk  c&  Western  Railroad  Company  vs.  Ready 
87  Va.,  185,  decided  December  4,  1890,  it  was  held :  Pending 
suit  by  man  and  wife  against  common  carrier  for  injury  to  her 
goods  while  in  course  of  transportation,  the  plaintiffs  for  value 
without  recourse,  by  deed,  assigned  the  right  of  action  to  her 
father,  for  whose  benefit  and  at  whose  costs  the  suit  continued 
to  be  prosecuted.  Held :  The  assignor  was  a  competent  witness 
at  the  trial  in  behalf  of  the  assignee. 

In  the  case  of  Ratcliff  vs.  Vandykes,  89  Va.,  307,  decided 
September  15,  1892,  it  was  held:  The  wife  has  no  separate  in- 
terest in  the  result  of  the  suit,  though  made  a  party ;  her  husband 
is  a  competent  witness  in  his  own  behalf. 

In  the  case  of  Bowman  et  als.  vs.  Reinhart  et  als.,  89  Va., 
435,  decided  December  1,  1892,  it  was  held :  Where  husband 
and  wife  are  both  parties  to  a  suit  in  which  the  latter's  in- 
terests are  involved,  he  is  not  a  competent  witness  for  or  against 
her. 

In  the  case  of  Field  vs.  Brown,  24  Grat.,  74,  decided  Novem- 
ber, 1873,  it  was  held :  The  plaintiff  in  a  cause  is  not  a  compe- 
tent witness  under  the  statute  to  prove  the  acts  and  declarations 
of  a  deceased  person  under  whom  the  defendants  claim. 

But  when  the  question  is  whether  the  acts  of  such  deceased 
person  in  building  a  dam  across  a  stream  injured  the  land  of  the 
plaintiff,  the  plaintiff  is  competent  to  prove  the  condition  of  his 
land,  the  character  of  the  stream  doing  the  injury,  the  effect  of  the 
dam  on  the  stream  and  on  the  adjacent  lands  of  the  plaintiff, 
and  other  independent  facts  as  to  which  his  testimony,  if  untrue, 
could  be  rebutted  by  others  as  readily  as  by  the  deceased. 

The  plaintiff's  deposition  having  been  taken  and  the  defend- 
ants having  cross-examined  him,  they  cannot  have  the  questions 
and  answers  on  cross-examination  struck  out,  though  they  may 
refer  to  the  acts  and  declarations  of  a  deceased  person  under 
whom  the  defendants  claim. 

In  an  action  by  F.  against  B.  for  injury  to  his  land  by  B.'s 
continuing  a  dam  across  a  stream  which  had  been  erected  by  a 
previous  owner,  the  defence  of  B.  is  that  of  adversary  posses- 
sion by  him  and  those  under  whom  he  claims  for  more  than 


CrrATioNs  TO  THE  Code  OF  ViEGiNiA.  761 

twenty  years.  To  rebut  the  presumption  arising  from  the  pos- 
session, F.  may  prove  what  passed  between  his  agent  and  M., 
a  former  occupant  of  the  premises  of  B.,  showing  that  the  agent 
of  B.  denied  the  right  of  M.  to  raise  the  dam,  and  that  M. 
asked  it  as  a  privilege  for  a  short  time. 

In  the  case  of  Stratham  vs.  Fergiieson's  Administrators  et  als., 
25  Grat.,  28,  decided  April  8,  1874,  it  was  held :  In  a  contro- 
versy between  an  unmarried  woman  on  the  one  part,  and  hus- 
bands and  wives  on  the  other,  in  relation  to  a  transaction  be- 
tween them,  in  which  all  are  interested,  as  the  husbands  and 
wives  are  incompetent  from  their  relation  with  each  other  to  tes- 
tify in  their  own  behalf  in  the  case,  the  unmarried  woman  is 
not  a  competent  witness  in  her  own  behalf. 

In  the  case  of  Martz  {Executor)  vs.  Martz's  Heirs,  25  Grat., 
361,  decided  October  2,  1874,  it  was  held :  A  will  is  not  a  con- 
tract, and  an  executor  or  legatee  is  not  a  party  to  it  in  the  sense 
of  the  statute. 

One  party  to  a  suit  is  incompetent  as  a  witness  on  account  of 
the  disqualification  of  the  other  party,  only  in  a  case  when  he 
was  a  party  to  the  transaction  which  is  the  subject  of  the  suit 
or  proceeding,  and  the  other  party  is  dead,  insane,  or  incompe- 
tent from  some  legal  cause. 

Where  the  objection  is  to  the  competency  of  the  witness,  and 
the  objection  is  sustained,  it  is  not  necessary  to  state  in  the  ex- 
ception what  the  party  offering  him  expects  to  prove  by  him. 

In  the  case  of  Huffmans  vs.  Walker,  26  Grat.,  314,  decided 
June  30,  1875,  W.  brings  debt  on  a  bond  against  H.,  and  H. 
pleads  payment  and  set-off,  on  which  there  is  issue.  H.  tiles 
with  his  plea  a  statement  of  the  payment,  which  was  the  amount 
of  a  bond  of  W.  and  J.  to  L.,  and  that  W.  agreed  with  H.,  if  H. 
would  pay  the  bond  due  to  L.,  H.  would  have  credit  for  the 
amount  as  a  payment  on  the  bond  sued  on.  Held:  H.  is  a 
competent  witness  to  prove  what  passed  between  himself  and  J. 
in  relation  to  the  arrangement  between  him  and  J.  for  the  pro- 
curement by  H.  of  the  bond  of  L.,  though  J.  is  dead. 

In  the  case  of  Brown! s  Administrator,  etc.,  vs.  Dickinson,  27 
Grat.,  690,  decided  June,  1876,  it  was  held:  Three  bonds  are 
executed  to  A.  and  G.,  and  are  left  in  the  possession  of  G.  A. 
sold  the  lands  to  E.,  but  they  being  in  the  possession  of  G. 
were  not  delivered  to  E.  G.  sold  and  delivered  the  bonds  to 
D.  In  a  suit  by  E.  against  D.  to  recover  the  bonds,  the  deposi- 
tion of  A.  was  taken  to  prove  that  G.  owed  him,  and  had  agreed 
that  he  should  have  the  bonds ;  but  at  the  time  of  taking  the 
deposition  of  A.  G.  was  dead.  A.  is  liable  to  E.  on  his  sale 
of  the  bonds  to  E.,  if  he  does  not  recover  them;  and  as  G.  is 
dead,  A.  is  not  a  competent  witness,  either  at  common  law  or 
under  the  statute,  to  prove  that  G.  had  agreed  with  him  that 


762  Citations  to  the  Code  op  Vibginia. 

the  bonds  should  belong  to  A.,  though  A,  is  not  a  party  in  the 
suit. 

In  the  case  of  Mason  et  als.  vs.  Wood,  27  Grat.,  783,  decided 
September  28,  1876.  M.  and  four  others  execute  a  bond  to  W. 
for  the  price  of  a  jack,  and  W.  warrants  him  sound  and  a  good 
foal-getter.  F.,  one  of  the  obligees,  died,  and  in  a  suit  on  the 
bond  by  W.  against  the  survivors  they  set  up  a  breach  of  the 
warranty  as  their  defence.  On  the  trial  W.  introduces  witnesses 
to  prove  what  two  of  the  defendants  said  to  the  witnesses,  long 
subsequent  to  the  purchase,  to  disprove  by  implication  the 
breach  of  warranty ;  and  then  the  defendant  offers  these  two  to 
testify  as  to  what  those  conversations  were.  Held :  F.  being 
dead,  W.,  the  plaintiff,  could  not  under  the  statute  testify  in 
the  cause,  and  therefore  the  two  defendants  are  incompetent  to 
testify,  though  in  relation  to  a  matter  which  occurred  after  the 
death  of  F. 

In  the  case  of  Hordes  Administrator  vs.  Colbert  et  als.,  28 
Grat.,  49  and  56,  decided  January,  1877.  H.  recovers  a  judg- 
ment against  M.  and  dies.  Subsequently  M.  conveys  land,  etc., 
to  C.  to  secure  two  bonds  held  by  W.,  and  this  deed  is  recorded. 
The  administrator  of  H.  files  a  bill  against  C.  and  W.,  in  which 
he  charges  that  C.  and  W.  had  notice  of  the  judgment  of  H. 
when  the  deed  was  executed,  and  that  the  debts  secured  by  the 
deed  are  not  hona  fide.  C.  and  W.  answer,  denying  the  notice 
and  asserting  the  debts  are  hona  fide.  C.  and  W.  are  examined 
as  witnesses  in  their  own  behalf,  and  C.  is  cross-examined  on 
all  the  issues  by  the  plaintiff,  with  a  knowledge  at  the  time  of 
the  objection  to  his  competency;  and  after  the  testimony  of  T. 
is  ended,  plaintiff  excepts  to  the  competency  of  each  of  them, 
on  the  ground  that  H.  was  dead.  Held :  The  plaintiff  having 
cross-examined  C.  on  all  the  issues  in  the  cause,  that  was  a 
waiver  of  the  objection  to  his  competency,  and  it  cannot  after- 
wards be  made. 

In  the  case  of  Grigshy  et  als.  vs.  Simpson^ s  Assignee,  etc.,. 
28  Grat.,  348,  decided  April  5,  1877,  it  was  held :  In  an  action 
on  a  bond  by  the  assignee  of  a  deceased  obligee,  the  obligors 
are  incompetent  witnesses  to  testify  in  their  own  behalf  under 
the  statute. 

In  the  case  of  Borst  vs.  Nalle  et  als.,  28  Grat.,  423,  decided 
April  19,  1877,  it  was  held,  p.  433-4:  Grantor  being  dead,  the 
grantee  is  not  a  competent  witness  in  his  own  behalf  as  to  the 
sale  and  conveyance  of  property. 

In  the  case  of  Neilson  et  als.  vs.  Bowman  et  als.,  29  Grat.,  732, 
decided  February  7,  1878,  it  was  held,  p.  750 :  Where  a  party 
to  a  cause  is  examined  in  his  own  behalf,  and  cross-examined 
at  length  by  the  other  party  without  objection  to  his  compe- 
tency, the  objection  cannot  be  made  in  the  appellate  court. 


.C1TAT19NS  TO  THE  Code  op  Virginia.  763 

In  the  case  of  Grandsta;ff-  et  als.  vs.  Bidgely,  Hampton  (&  Co.y 
30  Grat.,  1,  decided  January  31,  1878,  it  was  held:  In  an  action 
by  R.,  the  execution  creditor  of  K.  and  B.  against  the  sheriff  and 
his  surviving  sureties,  for  a  failure  to  pay  over  money  collected 
on  the  execution,  the  plaintiff  offered  B.  as  a  witness,  stating 
that  he,  R.,  expected  among  other  things  to  prove  by  this  wit- 
ness payment  of  money  to  said  sheriff  or  his  deputy  on  the  exe- 
cution of  R.  against  K.  and  B.  Held :  B.  was  not  so  directly 
interested  in  the  result  of  the  suit,  or  in  the  verdict  and  judg- 
ment to  be  rendered,  as  to  render  him  incompetent  to  testify  in 
the  cause. 

In  the  case  of  Burkholder  et  als.  vs.  Ludlam  et  als.,  30  Grat., 
255,  decided  March,  1878,  it  was  held :  Where  a  party  to  a  suit 
is  examined  as  a  witness,  and  testifies  about  transactions  to 
which  the  other  party  is  dead,  if  he  does  not  testify  in  his  own 
favor,  or  in  favor  of  any  other  party  having  an  interest  adverse 
to  the  party  who  is  dead,  or  those  claiming  under  him,  but 
against  his  own  interest  and  against  the  interest  of  those  hav- 
ing an  interest  adverse  to  the  dead  party,  he  is  not  incompe- 
tent. 

In  the  case  of  Morris's  Executor  vs.  Gruhh,  30  Grat.,  286,  de- 
cided March,  1878.  In  an  action  of  debt  by  W.  for  the  use  of 
G.  against  the  executor  of  M.  upon  two  bonds  purporting  to  be 
executed  by  M.  and  R.,  the  administrator  pleads  non  est  factum, 
and  payment.  The  only  proof  of  the  execution  of  the  bonds  by 
M.  is  proof  of  an  acknowledgment  by  M.  to  an  agent  of  G. 
made  after  assignment  to  G.,  and  the  proofs  as  to  payments 
are  of  payments  made  by  R.  to  G.  in  the  lifetime  of  M.  Held : 
G.  is  not  a  competent  witness  under  the  statute  to  testify  in  his 
own  behalf. 

In  the  case  of  Parents' s  Administrators  vs.  Spitlers's  Admin- 
istrators, 30  Grat.,  819,  decided  October  3, 1878,  it  was  held:  P. 
and  C,  commissioners,  sell  land  to  B.,  who  executes  his  bonds 
for  the  deferred  payments,  with  G.  and  P.  as  his  sureties.  B. 
sells  the  land  to  K.  P.  being  dead,  G.,  P.,  and  K.  are  incom- 
petent witnesses  to  prove  the  payment  of  the  bonds  by  B. 
to  P. 

In  the  case  of  Reynolds's  Executor  ys.  Callavmy' s  Executor,  31 
Grat.,  436,  decided  January,  1879.  R.'s  executor  brought  an 
action  of  debt  upon  a  bond  against  the  executor  of  C.  C.  was 
one  of  four  obligors  on  the  bond,  all  of  whom  were  dead  but  T., 
and  T.  was  discharged  bankrupt.  The  only  issue  in  the  case 
was  on  the  plea  of  payment.  Held :  That  T.  having  been  re- 
leased from  the  payment  by  his  discharge  in  bankruptcy  was  a 
competent  witness  at  common  law  for  the  defendant  to  prove 
payment  of  the  debt. 

In  the  case  of  Carter  vs.  Rale  et  als.,  32  Grat.,  115,  decided 


764  Citations  to  the  Code  of  Virginia. 

July,  1879.  In  an  action  of  debt  by  C.  against  H.  and  I.,  the 
surviving  obligors  in  the  bond  sued  on,  the  defendants  plead 
set-off,  and  file  a  list  of  bonds  delivered  by  H.  to  C,  which  the 
plea  states  C.  received  and  undertook  to  collect  and  apply  to 
the  payment  of  the  bond,  and  that  C.  had  collected  the  debts. 
Held :  That  H.  was  not  a  competent  witness  at  the  time  of  the 
trial  in  April,  1876,  to  prove  what  passed  between  himself  and 
C.  in  relation  to  said  set-offs ;  and  the  law  is  the  same  in  an 
action  on  the  same  bond  against  the  administrator  of  the  de- 
ceased obligor. 

In  the  case  of  Ellis  vs.  Harris's  Executor,  32  Grat.,  684,  de- 
cided February  5,  1880,  it  was  held,  p.  691:  H.,  who  built  the 
dam,  being  dead,  the  plaintiff,  E.,  is  not  a  competent  witness  to 
prove  anything  occurring  in  the  lifetime  of  H. 

The  executor  of  H.,  though  apart  owner  of  the  land  on  which 
the  mill  was  built,  is  a  competent  witness  in  the  case. 

In  the  case  of  Terry  vs.  liagsdale,  33  Grat.,  342,  decided 
July,  1880,  it  was  held,  p.  349 :  In  an  action  against  a  surviv- 
ing partner  upon  a  transaction  in  which  the  deceased  partner 
was  the  acting  party,  the  plaintiff  introduces  the  defendant  as  a 
witness.  The  defendant  so  introduced  becomes  a  competent 
witness  in  the  cause,  but  this  does  not  render  the  plaintiff  a 
competent  witness. 

In  the  case  of  Sim^nons  vs.  Simmons' s  Administrator,  33  Grat., 
451,  decided  July,  1880,  it  was  held,  p.  461 :  A  witness  who 
was  not  a  party  to  the  contract  or  transaction  which  is  the  sub- 
ject of  investigation  is  not  disqualified  on  account  of  interest 
only,  although  one  of  the  original  parties  to  the  contract  or 
transaction  be  dead,  insane,  or  incompetent  to  testify  b}^  reason 
of  infamy  or  any  other  legal  cause;  and  for  that  reason  the 
other  party  is  rendered  incompetent  to  testify. 

Objection  to  the  competency  of  a  witness  cannot  be  taken 
for  the  first  time  in  the  appellate  court. 

In  the  case  of  Knick  et  als.  vs.  Knick,  75  Va.,  12,  decided  No- 
vember 18,  1880,  it  was  held :  A  party  in  interest  and  on  the 
record  is  not  incompetent  to  testify  in  relation  to  a  contract  to 
which  he  is  not  a  party,  though  one  of  the  parties  to  the  con- 
tract is  dead,  and  the  other  party  to  the  contract  is  incompetent 
to  testify. 

In  the  case  of  Hughes  et  als.  vs.  Harvey  et  als.,  75  Va.,  200, 
decided  January  20,  1881.  W.  was  the  agent  of  the  widow  and 
the  heirs  in  making  out  the  agreement ;  he  was  the  commis- 
sioner to  sell  the  dower-land,  and  the  decree  directed  him  to 
pay  the  proceeds  to  M.  upon  her  giving  bond  to  refund  the 
money  at  her  death ;  and  he  was  the  surety  of  M.  as  guardian 
of  her  daughter.  J.  was  the  counsel  employed  in  both  cases, 
and  was  the  commissioner  to  sell  the  land,  which  M.  and  the 


Citations  to  the  Code  op  Virginia.  76^ 

heirs  proposed  to  buy,  aud  lie  reported  the  sale  to  M.  and  her 
payment  of  the  purchase-money,  and  there  was  a  decree  direct- 
ing him  to  convey  the  land  to  M.  without  any  reference  to  the 
agreement;  but  J,  died  without  conveying  the  land,  and  the 
agreement  was  lost.  Held:  It  was  competent  to  prove  the 
agreement,  and  that  the  purchase  and  payment  were  made  in 
pursuance  of  it ;  and  T.  was  a  competent  witness  to  prove  it. 

The  reference  to  75  Va.,  207,  is  an  error. 

In  the  case  of  Kelly  vs.  The  Board  of  Public  Works,  75  Va., 
263,  decided  February  10,  1881,  it  was  held :  K.  was  a  compe- 
tent witness  to  prove  his  arrangement  with  the  board,  although 
two  of  its  then  members  are  dead.  In  a  suit  against  the  cor- 
poration, the  plaintiff  cannot  be  disquahfied  as  a  witness  by  the 
exceptions  made  in  the  statute. 

In  the  case  of  Tate  vs.  Tate's  Executor,  75  Va.  522,  decided 
August  4,  1881,  it  was  held,  pp.  529-'30 :  When  all  the  parties 
to  a  controversy  save  one  are  dead,  the  surviving  party  is  in- 
competent to  testify  in  his  own  behalf  as  against  the  deceased 
parties,  and  objection  may  be  entered  by  the  personal  repre- 
sentative of  the  deceased  party  whose  estate  would  in  anymse 
become  liable  for  any  portion  of  the  claim  of  the  surviving 
party. 

In  the  case  of  Keran  vs.  Trice's  Executor  et  als.,  75  Va.,  690 
and  693,  decided  September,  1881.  The  deposition  of  T.  in  a 
suit  of  K.  vs.  T.  was  taken  and  closed  December  13,  1876,  K. 
being  present  in  person  and  by  counsel,  and  cross-examining 
the  witness.  Afterwards  T.  died,  and  K.  gave  his  deposition, 
K.  and  T.  being  the  original  parties  to  the  transaction  which 
was  the  subject  of  investigation  in  the  cause.  Held :  K.'s  de- 
position could  not  be  read,  his  disq\ialification  being  clearly 
fixed  by  the  very  letter  of  the  statute ;  but  the  deposition  of  T. 
was  admissible,  because  he  was  competent  to  testify  in  his  own 
behalf  when  he  deposed. 

In  the  case  of  Carter  et  als.  vs.  Edmonds,  80  Va.,  58,  decided 
January  15,  1885,  it  was  held :  The  committee  of  a  lunatic  is 
competent  to  testify  as  to  a  contract  made  by  him  with  a  former 
committee  of  the  same  lunatic  concerning  the  latter's  affairs. 

In  the  case  of  Dugger''s  Children  vs.  Dugger  et  als.,  84  Va,, 
130,  decided  December  1,  1887.  In  suit  by  children  claiming 
as  heirs  of  mother  equitable  title  to  property  to  annul  trust  deed 
and  sale  made  thereof  since  mother's  decease.  Held :  That  the 
father  is  a  competent  witness  to  prove  that  the  grantees  and 
purchasers  had  actual  notice  of  the  plaintiff's  claims. 

In  the  case  of  WelVs  Administrator  vs.  Ayers  et  als.,  84  Va., 
341,  decided  January  19,  1888,  it  was  held:  Books  containing 
entries  in  defendant's  handwriting,  of  payments  by  him  in  her 


766  Citations  to  the  Code  of  Yieginia. 

lifetime  on  note  in  action,  is  not  admissible  as  evidence  in  de- 
fendant's favor. 

Payee  being  dead,  maker  is  not  competent  to  testify  in  his 
own  favor  in  action  on  the  note,  no  person  having  an  interest 
adverse  to  makers  having  previously  testified  to  some  fact  oc- 
curring before  payee's  death. 

In  the  case  of  Wager  vs.  Barbour,  84  Va.,  419,  decided  Jan- 
uary 26,  1888,  it  was  held :  One  not  a  party  to  a  bond,  but  who 
has  agreed  with  the  obligor  to  pay  it,  and  has  received  from  him 
the  money  for  that  purpose,  is  a  competent  witness  to  prove 
payment,  though  the  obligee  is  dead. 

In  the  case  of  Hall  vs.  Rixey,  84  Va.,  790,  decided  April 
26,  1888,  it  was  held:  One  who  is  not  a  party  to  the  contract  or 
transaction  which  is  the  subject  of  investigation,  is  competent  to 
testify,  though  one  of  the  original  parties  to  such  contract  or 
transaction  is  dead,  or  for  other  causes  incompetent,  and  for  that 
reason  the  other  party  is  incompetent  to  testify. 

In  a  suit  by  assignee  against  his  assignor,  on  recourse,  the 
subject  of  investigation  is  the  assignment  whereon  the  claim  is 
based,  and  not  the  communications  between  the  deceased  as- 
signor and  the  assignee's  attorney,  wherein  the  former  directed 
the  latter  not  to  sue  on  the  assigned  claims,' said  attorney  is 
competent  to  testify  to  said  communications. 

Communications  by  assignor  to  attorney  of  assignee  are  not 
privileged  where  attorney  was  acting  for  his  client. 

Section  3347. 
In  the  case  of  Saunders  et  ux.  vs.  Greever  {Administrator), 
85  Va.,  252,  decided  August  16,  1888,  it  was  held  :  When  one 
distributee  claims  as  his  own  personalty  in  possession  of  ances- 
tor at  his  death  under  parol  purchase  by  distributee  from  an- 
cestor, said  distributee  is  not,  in  a  suit  with  his  co-distributees, 
competent  to  testify  to  said  purchase,  unless  his  case  comes 
within  some  one  of  the  provisions  contained  in  this  section. 

Section  3349. 
See  the  case  of  Keran  vs.  Trices  Executors  et  als.,  75  Va.,  690, 
cited  ante.  Section  3346. 

Section  3358. 

In  the  case  of  Moore  vs.  Gilliam,  5  Munf.,  346,  decided  Janu- 
ary 31, 1817,  it  was  held  :  It  seems  that  the  testimony  of  an  editor 
of  a  newspaper  that  he  inserted  therein  the  requisite  number 
of  times  an  advertisement,  the  purport  of  which  he  states  on 
oath,  is  sufficient  proof  of  such  publication,  on  a  trial  in  eject- 
ment, without  producing  the  advertisement  itself. 

In  the  case  of  Cunningham's  Executor  vs.  Smithson,  12  Leigh, 
32,  decided  March,  1841,  it  was  held :  In  a  chancery  suit  against 


Citations  to  the  Code  op  Virginia.  767 

absent  defendants  the  only  proof  of  publication  of  an  order  was 
a  certificate  of  the  printer,  not  verified  by  oath ;  no  exception 
was  taken  in  court  below,  and  court  declaring  that  plaintiff  had 
proceeded  regularly  against  the  absent  defendants  gave  him  a 
decree.  Upon  appeal  neither  party  can  object  to  the  want  of 
proof  of  publication,  and  especially  the  plaintiff,  to  whose  fault 
the  irregularity  was  imputable,  cannot  ask  the  reversal  of  his 
own  decree  on  that  ground.  ' 

Section  3359. 

In  the  case  of  Baxter  vs.  Moore,  5  Leigh,  219,  decided  April, 
1834,  it  was  held :  Depositions  of  witnesses  read  at  the  hearing 
of  a  suit  in  equity,  without  objection,  cannot  be  objected  to  on 
the  ground  of  incompetency  of  the  witnesses,  in  the  court  of 
appeals,  on  the  hearing  of  an  appeal  from  the  decree. 

In  the  case  of  Pollard's  Heirs  vs.  Lively,  2  Grat.,  216,  decid- 
ed July,  1845.  A  person  taking  a  deposition  under  a  regular 
commission  and  notice  certifies  that  the  deposition  was  taken 
before  him,  and  signs  his  name  to  the  certificate,  with  the  addi- 
tion of  the  letters  J.  P.  Held :  It  sufliciently  appears  that  he 
is  a  justice  of  the  peace. 

A  witness  giving  his  deposition  de  hene  esse  states  in  it  that 
he  is  unable,  from  his  age  and  infirm  health,  to  attend  the  court. 
This  is  sufficient  to  authorize  his  deposition  to  be  read  upon 
the  trial  of  the  cause  in  which  it  is  taken. 

Though  in  the  case  of  Simmons  vs.  Simmons's  Administrators y 
33  Grat.,  451,  460-'61,  there  were  depositions  taken,  there  is 
nothing  affecting  this  section,  the  objections  being  to  the  com- 
petency of  the  witnesses,  not  to  the  authority  to  take  the  de- 
positions. 

Section  3362. 

In  the  case  of  Collins  vs.  Lowry  c&  Co.,  2  Washington,  97  (1st 
edition,  page  75),  decided  at  October  term,  1795,  it  was  held: 
When  a  deposition  is  read  at  common  law,  whether  it  was  taken 
de  bene  esse  or  in  chief,  it  should  appear  in  the  record  on  appeal 
that  notice  of  the  time  and  place  of  taking  it  had  been  given  to 
the  adverse  party. 

In  the  case  of  Stuhhs  vs.  Burwell,  2  H.  &  M.,  536,  decided 
May  18,  1808,  it  was  held:  A  deposition  cannot  be  read  to  af- 
fect the  interests  of  any  party  to  whom  no  notice  of  the  time 
and  place  of  taking  it  had  been  given. 

In  the  case  of  Rowlett  [Executor)  vs.  Moody,  4  H.  &  M.,  1, 
decided  May  3,  1809.  The  "reasonable  notice"  which  the 
law  requires  upon  taking  depositions  must  depend  upon  cir- 
cumstantial evidence;  therefore,  when  a  notice  was  left  with 
the  wife  of  a  party  at  his  dwelling-house,  when  it  was  known 


768  Citations  to  the  Code  of  Vikginia. 

by  the  adverse  party  that  he  was  absent  on  a  journey  to  another 
State,  and  where  it  appeared,  also,  that  the  notice  might  previ- 
ously have  been  given  to  the  party  himself,  and  that  the  taking 
of  the  depositions  might  have  been  postponed,  as  it  respected 
the  trial  of  the  cause,  till  his  return,  it  was  held :  That  the  no- 
tice was  insufficient;  and  the  deposition  taken  under  it  was 
suppressed. 

In  the  case  of  Chapman  vs.  Chapman,  4  H.  &  M.,  426,  de- 
cided by  the  General  Court  of  Chancery  for  Richmond,  spring 
vacation,  1809,  it  was  held :  A  notice  to  take  a  deposition,  given 
to  the  overseer  of  the  party,  who  resided  for  a  part  of  his  time 
in  the  State  and  for  a  part  of  the  time  out  of  it,  is  not  sufficient. 

In  the  case  of  Butts  vs.  Blunt  et  als.,  1  Rand.,  255,  decided 
December,  1822,  it  was  held :  Depositions  ought  not  to  be  ad- 
mitted in  a  suit  at  law,  unless  it  appears  by  the  record  in  what 
suit  and  by  what  authority  they  were  taken,  and  that  the  wit- 
nesses could  not  attend  at  the  trial. 

In  the  case  of  Hunter  vs.  Fulcher,  5  Rand.,  126,  decided 
March,  1827,  it  was  held:  A  notice  to  take  depositions  is  in- 
sufficient if  it  omits  the  place  where  the  depositions  are  to  be 
taken;  nor,  if  the  magistrates  meet  on  the  day  appointed,  can 
they  resume  the  taking  of  depositions  at  any  future  day  without 
an  adjournment  to  such  day. 

In  the  case  of  Dunhar's  Executors  vs.  Woodcock's  Executor, 
10  Leigh,  629  (2d  edition,  660),  decided  March,  1840,  it  was 
held :  An  interlocutory  decree  in  chancery,  deciding  a  question 
of  fact  in  litigation,  pronounced  in  the  progress  of  an  account, 
upon  exceptions  to  a  report,  or  instructions  to  a  commissioner 
as  to  the  propriety  of  items  of  debit  or  credit,  is  not  such  a 
final  decree  as  precludes  a  party  from  taking  new  evidence 
touching  the  same  question  of  fact,  without  having  obtained  a 
review  or  rehearing  of  the  decree,  and  without  showing  that 
the  new  evidence  had  been  discovered  since  the  decree. 

In  the  case  of  Kincheloe  vs.  Kincheloe,  11  Leigh,  393,  de- 
cided August,  1840.  A  notice  is  given  by  the  plaintiff  to  de- 
fendant for  taking  the  depositions  of  several  witnesses  at  a 
specified  place  in  Missouri  on  six  successive  days,  between 
certain  hours  of  each  day.  Held :  Considering  the  distance  of 
the  place  appointed  for  taking  the  depositions,  and  the  uncer- 
tainty of  the  precise  time  at  which  the  party  would  be  enabled 
to  have  things  in  readiness  for  taking  them,  the  notice  is  suffi- 
ciently definite. 

In  the  case  of  Moore  vs.  Hilton,  12  Leigh,  1,  decided  Feb- 
ruary, 1841.  Under  the  structure  of  the  statute  of  March,  1826, 
Supplement  to  Rev.  Code,  Chapter  103,  Section  9,  held :  That 
after  an  interlocutory  decree  upon  a  hearing,  deciding  the  ques- 
tions of  fact  in  issue  between  the  parties,  neither  party  has  an 


Citations  to  the  Code  op  Virginia.  769 

absolute  right  to  introduce  new  evidence  touching  the  questions 
so  decided ;  the'  introduction  of  such  evidence  depends  on  the 
sound  discretion  of  the  court,  and  its  judgment  on  its  sufficiency 
of  the  excuse  offered  for  the  failure  to  have  it  before  the  court 
when  the  caiise  was  heard  and  the  interlocutory  decree  pro- 
nounced ;  and  such  excuse  may  be  offered,  either  on  motion 
upon  notice  or  upon  a  petition  for  a  rehearing  of  the  cause. 

See  the  case  of  McCandlish  vs.  Edloe  et  als.,  3  Gtat.,  330, 
ante,  Section  3320. 

In  the  case  of  Unis  et  als.  vs.  Charltoris  Administrator,  12 
Grat.,  484,  decided  August  24,  1855,  it  was  held :  A  deposition 
is  taken  by  a  plaintiff  in  another  State,  to  be  read  as  evidence 
in  a  cause  depending  here,  and  the  justices  certify  that  the 
defendants  appeared  by  counsel  and  cross-examined  the  wit- 
nesses; and  the  deposition  shows  that  counsel  professing  to 
represent  the  defendants  did  appear  and  cross-examine  the 
witness.  It  does  not  appear,  however,  that  the  deposition  was 
taken  under  a  commission,  or  that  the  court  here  had  ever  au- 
thorized a  commission  to  issue ;  nor  was  any  notice  to  the  de- 
fendant produced  or  proved.  The  deposition  is  taken  without 
authority;  and  the  justices  having  no  authority  to  take  the 
deposition,  their  certificate  is  no  proof  of  the  facts  it  states. 

A  deposition  having  been  taken  without  authority  or  notice 
is  not  admissible  as  evidence;  and  the  objection  to  it  may  be 
taken  when  it  is  offered  to  be  read  as  evidence.  The  deposi- 
tion of  a  witness  having  been  introduced  as  evidence,  it  is  not 
competent  for  the  other  party  to  impeach  his  credibility  by  the 
proof  of  statements  made  by  him  at  another  time  inconsistent 
with,  or  contradictory  of,  the  statement  in  his  deposition,  before 
the  foundation  for  the  introduction  of  such  impeaching  testi- 
mony is  first  laid  by  an  examination  of  the  witness  touching  the 
fact  of  his  having  made  such  statement.  A  deposition  taken  at 
so  late  a  day  that  the  other  party  cannot  attend  at  the  time  and 
place  of  taking  it,  and  then  get  to  the  court  where  the  cause  in 
which  it  is  taken  is  to  be  tried  by  the  commencement  of  the 
term,  is  not  admissible  evidence. 

In  the  case  of  Faiit  vs.  Miller  cfe  May  hew,  17  Grat.,  187,  de- 
cided January  16,  1867,  it  was  held :  A  party  has  a  right  to  be 
personally  present  when  depositions  are  taken  by  his  adversary, 
and  a  notice  which  does  not  afford  him  an  opportunity  to  be 
present  is  insufficient,  and  his  exception  to  the  deposition  6n 
that  ground  ought  to  be  sustained. 

If  a  party  gives  notice  of  the  taking  of  several  depositions  at 
different  places  on  the  same  day,  so  that  the  opposing  party 
cannot  be  present  to  cross-examine  all  the  witnesses,  he  may 
select  which  examination  he  will  attend,  and  the  other  deposi- 
tions will  be  suppressed. 

49 


770  Citations  to  the  Code  op  Vieginia. 

An  exception  a  to  deposition,  whether  endorsed  on  it,  or  taken 
and  entered  on  its  face  in  the  process  of  taking  it,  or  written  on 
a  separate  paper  and  filed  in  the  cause  (except  on  the  ground 
of  incompetency,  in  which  case  no  exception  is  necessary),  not 
having  been  brought  to  the  notice  of  the  court  below,  or  passed 
upon  by  that  court,  ought  to  be  considered  as  having  been 
waived,  and  cannot  be  noticed  by  the  appellate  court ;  and  a 
general  judgment  or  decree  of  the  court  below  against  the  party 
making  the  exception  cannot  be  considered  as  involving  a  de- 
cision upon  the  exception. 

In  the  case  of  Peshine  vs.  Sheppei'son,  17  Grat.,  472,  decided 
May  14,  1867,  it  was  held :  If  depositions  are  read  on  a  trial 
without  objection,  or  if  objection  is  made  without  an  exception 
taken  to  their  admission,  upon  another  trial  of  the  cause  they 
will  not  be  excluded  for  the  failure  to  prove  notice  to  take  them, 
unless  the  party  objecting  has  given  notice  to  the  other  party  of 
his  intention  to  object  to  them  in  time  to  enable  the  party  offer- 
ing them  to  take  them  again,  and  the  witnesses  are  alive  at  the 
time  of  such  notice. 

In  the  case  of  Bartley  vs.  McKinney,  28  Grat.,  750,  decided 
July,  1877,  it  was  held :  A  deposition  is  taken  to  be  read  in  a 
case  in  which  Franklin  Bartley  is  defendant,  and  that  is  the 
name  given  in  the  summons  and  to  which  he  appeared,  but  the 
name  in  which  the  action  is  carried  on  is  William  F.  Bartley. 
The  person  is  obviously  the  same,  and  Franklin  is  a  part  of  the 
defendant's  name.  The  deposition  cannot  be  objected  to  on 
this  ground. 

In  the  case  of  Latham  (by,  etc.)  vs.  Latham,  30  Grat.,  307,  de- 
cided July,  1878,  it  was  held :  Notice  is  given  to  take  deposi- 
tions at  two  distant  places  on  the  same  day.  The  other  party 
may  attend  at  one  of  the  places,  and  object  to  the  depositions 
taken  at  the  other  place  for  want  of  notice ;  but  if  he  attends  by 
his  counsel  at  both  places,  he  cannot  except  to  the  depositions 
taken  at  either  or  at  both  places. 

In  the  case  of  Richardson  vs.  Dvhle  et  als.,  33  Grat.,  730,  de- 
cided September,  1880,  it  was  held :  In  such  case,  if  no  inter- 
locutory decree  has  been  rendered,  or  even  though  one  has  been 
rendered,  a  deposition  taken  and  returned  before  a  final  hear- 
ing, as  to  any  matter  not  adjudicating,  may  be  read ;  but  the 
right  is  not  an  absolute  right.  The  statute  does  not  say  that 
the  deposition  shall  be,  but  it  may  be,  read. 

In  this  case  the  cause  having  been  referred  to  a  commissioner 
and  ample  opportunity  offered  both  parties  to  introduce  their 
witnesses,  and  the  commissioner  had  made  his  report  and  the 
cause  was  ready  for  a  hearing,  deposition  afterwards  taken  by 
one  of  the  parties  as  to  a  controverted  matter  in  the  report 
was,  under  the  circumstances,  properly  disregarded  by  the  court 
in  deciding  the  cause. 


Citations  to  the  Code  of  Virginia.  771 

The  case  of  Trevellyn  vs.  Lofft,  83  Va.,  141,  decided  April  14, 
1887,  follows  the  statute,  not  construes  it.  This  is  the  case 
cited  from  11  Va.  Law  Journal,  610. 

Section  3364. 

In  the  case  of  JPant  vs.  Miller  (&  Mayhew,  17  Grat.,  187,  de- 
cided January  16, 1867,  it  was  held,  pp.  219-22 :  If  the  circum- 
stances of  the  case  and  justice  require  that  a  second  examination 
of  the  same  witness  should  take  place,  an  order  will  be  made  to 
permit  it,  unless  it  was  palpably  improper  to  grant  leave  for  the 
second  examination  of  a  witness ;  an  appellate  court  will  not  for 
this  cause  reverse  the  decree,  as  the  circuit  court  ought  to  pos- 
sess much  latitude  of  discretion  in  the  decision  of  such  questions. 

In  the  case  of  Carter  et  als.  vs.  Edmonds,  80  Va.,  58,  decided 
January  15,  1885,  it  was  held,  p.  63 :  A  confirmed  report  of  an 
ex  parte  settlement  of  a  fiduciary's  accounts  is  prima  facie  cor- 
rect, and  can  be  surcharged  or  falsified  only  by  a  suit  for  the 
purpose  within  proper  time.  This  is  equally  true  quoad  settle- 
ments of  the  accounts  of  the  committee  of  a  lunatic. 

Section  3365. 

See  the  case  of  Collins  vs.  Lowry  c&  Co.,  2  Wash.,  97  (1st  edi- 
tion, p.  75),  cited  ante,  Section  3362. 

In  the  case  of  Minnis  vs.  Echols,  2  H.  &  M.,  31,  decided 
March  2,  1808,  it  was  held :  The  circumstance  that  a  witness  has 
been  summoned  and  fails  to  attend  is  not  sufficient  to  autho- 
rize the  reading  of  his  deposition  taken  de  bene  esse,  but  it  must 
be  proved  that  he  is  dead,  or,  if  living,  unable  to  attend. 

In  the  case  of  Tompkins  <&  Co.  vs.  Wiley,  6  Band.,  242,  de- 
cided February,  1828,  it  was  held:  If  there  be  no  objection 
made  to  the  regularity  of  the  deposition  in  a  court  of  law,  the 
court  of  appeals  will  presume  it  was  properly  taken,  although 
there  is  neither  commission  or  notice  in  the  record. 

It  is  improper  to  read  a  deposition  in  a  court  of  law  on  ac- 
count of  the  absence  of  the  witness,  unless  the  party  ofi'ering  it 
proves  that  he  has  used  due  diligence  to  find  the  witness,  or 
that  he  is  not  within  the  jurisdiction  of  the  court  and  the  reach 
of  its  process. 

In  the  case  of  Lynch  vs.  Thomas,  3  Leigh,  682,  decided  May, 
1832.  Plaintiff  having  taken  the  deposition  of  an  aged  and  in- 
firm witness  to  be  read  de  bene  esse,  fails  to  take  out  a  subpoena 
and  have  it  served  on  the  witness  to  attend  at  the  trial.  Held : 
That  upon  satisfactory  proof  of  the  witness's  inability  to  attend 
the  trial  by  reason  of  ill-health,  the  deposition  shall  be  read. 

See  the  case  of  Pollard's  Heirs  vs.  Lively,  2  Grat.,  216,  cited 
ante,  3359. 


772  Citations  to  the  Code  of  Virginia. 

In  the  case  of  NuchoVs  AdTninistrator  ys.  Jones,  8  Grat.,  267^ 
decided  October,  1851.  In  a  case  of  probate  the  deposition  of  an 
aged  witness  taken  de  hene  esse,  is  allowed  to  be  read  upon  proof, 
either  bj  witnesses,  or  by  his  own  affidavit  of  his  inability  to 
attend  the  court.  In  a  case  of  probate,  a  witness  unable  to  at- 
tend the  court  is  examined  as  to  the  handwriting  of  a  testamen- 
tary paper  which  had  been  shown  to  him  by  the  propounder  of 
the  will,  but  which  was  not  before  him  at  the  time  he  gave  his 
deposition.  Held:  That  the  testimony  is  admissible,  its  weight 
depending  upon  the  certainty  of  the  pi  oof  that  the  paper  pro- 
pounded for  probate  is  the  paper  that  was  shown  to  the  witness. 

In  the  case  of  Tayloe  vs.  Smith,  10  Grat.,  557,  decided  Jan- 
uary, 1854,  it  was  held :  The  affidavit  of  a  witness  taken  before 
a  justice  of  the  peace,  that  from  his  age  and  infirmities  he  was 
unable  to  attend  the  court  without  endangering  his  life,  not  hav- 
ing been  objected  to  in  the  court  below  for  want  of  notice,  that 
objection  cannot  be  made  in  an  appellate  court.  Such  an  affi- 
davit taken  eight  days  before  a  cause  is  called  for  trial,  is  suffi- 
cient to  authorize  the  deposition  of  the  witness,  which  had  been 
taken  de  hene  esse,  to  be  read  as  evidence. 

Section  3366. 

In  the  case  of  Barnett  <&  Woolfolk  vs.  Watson  <&  Urquhart,  1 
Wash.,  372  and  380,  decided  at  the  fall  term,  1794.  The  de- 
claration was  against  Barnett  &  Woolfolk ;  the  writ  was  returned 
"no  inhabitant"  as  to  Barnett;  Woolfolk  entered  appearance, 
pleaded,  and  the  plaintiff  got  an  order  for  taking  depositions, 
after  which  Barnett  appeared  and  acknowledged  the  service  of 
notice  of  taking  depositions,  and  afterwards  Barnett  &  Woolfolk 
appealed  on  the  ground  that  depositions  taken  in  a  suit  against 
Joseph  Woolfolk  were  not  available  in  a  suit  against  the  firm. 
Held :  The  depositions  were  properly  read,  as  the  appearance 
was  a  joint  defence.  The  deposition  need  not  be  subscribed  by 
the  witness  where  certified  by  two  magistrates  to  be  taken  on 
oath. 

In  the  case  of  Marshall  vs.  Frishee,  1  Munf.,  247  and  252, 
decided  April  30,  1810,  it  was  held :  An  order  of  court  granting 
leave  to  take  a  deposition  in  the  •  city  of  Philadelphia,  being 
"  by  consent  of  parties  that  a  commission  issue  to  any  four 
aldermen  of  the  said  city  and  W. -K.,"  and  a  subsequent  order 
also  by  consent,  granting  "  new  commissions  to  take  deposi- 
tions," a  commission  issuing  afterwards  "to  R.  K.,  alderman 
of  the  city  of  Philadelphia,  and  four  other  persons  by  name," 
not  said  to  be  aldermen  (and  omitting  W.  K),  "any  three  of 
whom  to  act  if  the  whole  cannot,"  should  be  presumed  to  have 
been  directed  to  persons  agreed  upon  by  the  parties,  but  whose 


Citations  to  the  Code  of  Virginia.  773 

names  were  omitted  by  the  clerk  in  entering  the  last  order ;  no 
objection  having  been  made  in  the  court  below  on  account  of 
any  real  or  supposed  variance  between  the  first  and  second 
orders  and  commissions. 

A  commission  directed  to  five  persons,  "  any  three  of  whom 
to  act,"  caunot  be  executed  by  one  only,  and  a  return  by  one 
that  three  others  were  present  when  the  deposition  was  taken, 
is  not  sufficient.  It  should  be  certified  by  three,  at  least,  who 
were  present, 

A  deposition  taken  at  a  time  and  place  not  mentioned  in  the 
notice  may  be  read  as  evidence ;  an  agent  of  the  party  to  whom 
the  notice  was  given,  duly  authorized  to  attend  to  the  taking  of 
such  deposition,  having  appeared  at  the  time  and  place  ap- 
pointed and  consented  to  a  postponement  to  such  other  time 
and  place;  and  if  in  other  respects  the  commission  be  regu- 
larly executed  and  returned,  the  court  will  presume  from  cir- 
cumstances that  the  person  who  gave  the  consent  was  the 
authorized  agent  of  the  party. 

In  the  case  of  Givens  tfi  Reynolds  vs.  Manns,  6  Munf.,  191, 
decided  October  23,  1818,  it  was  held :  It  seems  that  a  deposi- 
tion taken  de  lene  esse  by  two  magistrates,  and  with  due  notice 
(it  appearing  that  an  order  of  court  was  made  awarding  a  com- 
mission to  take  it,  and  that  the  clerk  charged  a  fee  for  issuing 
the  commission),  may  be  read  as  evidence,  on  proof  of  inability 
of  the  witness  to  attend,  notwithstanding  there  be  no  other 
proof  that  it  was  taken  by  virtue  of  a  commission  delivered  to 
the  magistrates  (no  commission  being  found  among  the  papers), 
and  it  be  returned  to  the  clerk's  office,  opened  and  unsealed, 
but  without  being  shown  to  have  been  erased  or  altered. 

In  the  case  of  CabelVs  Executors  vs.  Megginson's  Administra- 
tors, 6  Munf.,  202,  decided  October  26,  1818,  it  was  held:  Ac- 
cording to  the  practice  in  our  court  of  equity,  it  seems  that  a 
bill  to  set  up  a  lost  bond  need  not  be  supported  by  the  plain- 
tiff's affidavit. 

Section  3370. 

In  the  case  of  Templeman  vs.  Fauntleroy,  3  Rand.,  434,  de- 
cided June,  1825,  it  was  held:  A  court  of  chancery  may  direct 
the  reference  of  a  case  to  a  master,  with  authority  to  examine 
the  defendants  on  oath,  and  such  examination  will  have  the 
effect  of  an  answer. 

In  the  case  of  Baker  \s..Morriss's  Administrator,  10  Leigh, 
284  (2d  edition,  294),  decided  May,  1839.  In  a  suit  in  equity 
to  enforce  payment  of  a  bond  debt  twenty-eight  years  after  the 
right  to  demand  it  accrued,  there  being  no  remedy  under  the 
circumstances  of  the  case  but  in  equity,  the  bill,  to  rebut  the 
presumption  of  satisfaction  arising  from  lapse  of  time,  calls  on 
the  defendant  to  answer  whether  the  debt  has  been  paid  or 


774  Citations  to  the  Code  of  Virginia. 

not.  Held :  The  defendant  was  properly  compelled  to  answer 
that  point. 

Where  assumpsit  is  brought  at  law,  and  the  statute  of  limita- 
tions pleaded,  the  plaintiff  may  file  a  bill  of  discovery  in  equity, 
calling  on  the  defendant  to  answer  whether  he  has  not  made  a 
new  promise  within  the  term  of  limitation,  in  order  to  use  this 
matter  on  the  trial  of  the  action  at  law  in  avoidance  of  the  bar 
of  the  statute,  and  the  defendant  shall  answer  the  allegation  of 
the  new  promise  on  oath. 

In  the  case  of  Vaughn  <&  Co.  vs.  Garland,  11  Leigh,  251,  de- 
cided July,  1840,  it  was  held :  A  plaintiff  in  an  action  at  law, 
wishing  a  discovery  from  the  defendant,  files  written  interroga- 
tories, under  the  statute,  to  which  answers  are  given.  At  the 
trial  the  defendant  offers  to  read  to  the  jury  as  evidence  the  in- 
terrogatories and  answers,  to  which  the  plaintiff  objects.  Never- 
theless, the  circuit  court  permits  the  same  to  be  read,  and  a 
verdict  and  judgment  are  rendered  for  the  defendant.  The 
court  of  appeals  reverses  the  judgment  of  the  circuit  court,  and 
awards  a  new  trial,  with  directions  that  the  answers  to  the  in- 
terrogatories are  not  to  be  read,  unless  introduced  on  the  part 
of  the  plaintiff. 

In  the  case  of  Poindexter,  etc.,  vs.  Davis  et  als.,  6  Grat.,  481, 
decided  January,  1850,  it  was  held :  A  party  to  a  cause  is  not 
bound  to  answer  interrogatories  which  may  subject  him  to  a 
penalty  or  forfeiture.  This  rule  is  not  confined  to  cases  where  the 
purpose  of  the  action  is  to  enforce  the  penalty  or  forfeiture,  but 
extends  to  those  where  the  discovery  itself  would  expose  the 
party  to  some  action  or  suit,  or  to  any  criminal  or  penal  prose- 
cution tending  to  the  like  result. 

If  the  court  permits  improper  interrogatories  to  be  filed, 
and  directs  them  to  be  answered,  the  party  to  whom  they  are 
directed  may  answer  them,  and  then,  on  trial  of  the  cause,  may 
object  to  their  admission  as  evidence. 

In  the  case  of  Fant  vs.  Miller  &  Mayhew,  17  Grat.,  187,  de- 
cided January  16, 1867,  it  was  held :  The  rule  in  equity  practice 
that  the  answer  of  the  defendant  upon  any  matter  stated  in  the 
bill,  and  responsive  to  it,  is  evidence  in  his  favor,  applies  when 
a  material  disclosure  is  called  for  by  the  bill  and  is  made  in  the 
answer.  A  plaintiff  cannot  destroy  the  weight  of  the  whole  an- 
swer by  proving  that  the  defendant  is  unworthy  of  credit,  nor 
can  he  incidentally  do  so  by  proving  that  the  answer  is  defect- 
ive in  one  respect,  or  in  several  respects,  the  only  effect  of  such 
proof  being  to  destroy  the  weight  of  the  answer  to  the  extent 
to  which  it  is  disproved  by  that  amount  of  evidence  which  is 
required  by  the  rule  in  chancery.  The  answer  of  a  defendant 
to  a  pure  bill  of  discovery,  when  used  on  a  trial  at  law,  is  used 
as  a  matter  of  evidence,  the  whole  of  which  is  to  be  read  as  the:^ 


Citations  to  the  Code  of  Virginia.  775 

testimony  of  a  witness,  including  not  only  admissions  against 
the  interest  of  the  respondent,  but  all  assertions  in  his  favor, 
subject,  however,  to  be  credited  or  discredited,  in  whole  or  in 
part,^by  the  court  or  the  jury,  according  to  its  own  intrinsic 
weight,  or  its  relative  weight  in  comparison  with  the  other  evi- 
dence in  the  action  at  law. 

When  a  plaintiff  goes  into  equity  for  relief  on  the  ground  of 
discovery,  the  court  will  give  to  the  answer  of  the  defendant 
the  same  effect  that  would  be  given  to  it  in  a  court  of  law,  ex- 
cept that  the  plaintiff  cannot  contradict  the  answer  by  other 
evidence,  as  he  would  thereby  prove  himself  out  of  court. 

A  commissioner  properly  has  much  latitude  of  discretion  in 
granting  continuances  of  proceedings  before  him,  and  the  court 
whose  order  he  is  executing  will  not  overrule  his  action  in  that 
respect,  unless  it  be  plainly  erroneous.  Still  less  will  an  appel- 
late court  reverse  a  decree  for  that  cause. 

Section  3373. 

In  the  case  of  Evans  vs.  Stewart  et  als.,  81  Va.,  724,  decided 
February  18,  1886,  it  was  held :  A  person  for  seven  years  not 
heard  of  by  those  who,  had  he  been  alive,  would  naturally  have 
heard  of  him,  is  presumed  to  be  dead ;  but  the  law  raises  no 
presumption  as  to  the  precise  time  of  his  death. 

The  burden  of  proving  that  the  death  took  place  at  any  par- 
ticular time  within  the  seven  years  lies  upon  the  person  claim- 
ing a  right  to  the  establishment  of  which  that  fact  is  essential. 

Section  3375. 

See  the  references  given  to  Section  2897. 

In  the  case  of  2^he  Commonwealth  vs.  Morris,  1  Va.  Cases, 
176  (referred  to  as  172),  it  was  held:  In  a  criminal  prosecution 
for  libel  truth  may  be  shown  in  mitigation  of  fine. 

In  the  case  of  Brooks  vs.  Calloway,  12  Leigh,  466,  decided 
December,  1841.  The  court,  on  the  trial  of  an  issue,  makes  a 
remark  calculated  to  prejudice  the  minds  of  the  jury  against  the 
defendant,  but  at  the  same  time  tells  the  jury  that  that  remark 
has  nothing  to  do  with  the  cause,  and  ought  not  to  influence 
their  verdict;  and  a  verdict  is  rendered  for  the  plaintiff.  Held: 
Such  remark  is  no  ground  for  reversing  the  judgment  on  the 
verdict. 

In  the  case  of  Moseley  vs.  3foss,  6  Grat.,  534,  decided  Jan- 
uary, 1850,  it  was  held :  If  in  actions  of  slander  under  the 
statute,  the  truth  of  the  words  spoken  may  be  given  in  evidence 
in  mitigation  of  damages.  Capell,  P.,  and  Baldwin,  J.,  in  the 
affirmative,  and  Allen,  J.,  in  the  negative. 

In  the  case  of  Bourland\s.  Edison,  8  Grat.,  27,  decided  July, 
1851,  it  was  held :  In  an  action  of  slander,  under  the  plea  of  not 


776  Citations  to  the  Code  of  Virginia. 

guilty,  the  defendant  may  in  mitigation  of  damages  prove  any 
facts,  as  to  the  conduct  of  the  plaintiff  in  relation  to  the  trans- 
action which  was  the  occasion  of  the  slanderous  language  com- 
plained of,  which  tend  to  excuse  him  for  uttering  the  words, 
provided  the  facts  do  not  prove  or  tend  to  prove  the  truth  of 
the  charge  complained  of,  but  in  fact  relieve  the  plaintiff  from 
the  imputation  involved  in  it. 

In  the  case  of  Hogan  vs.  Wilmouth,  16  Grat.,  80-85,  et  seq., 
decided  August  30,  1860,  it  was  held :  In  this  case  the  truth  of 
the  words  may  be  shown  in  mitigation  of  damages  though  the 
action  is  under  the  statute ;  but  the  court  carefully  refrained 
from  deciding,  and  expressly  said  that  they  should  not  decide 
this  rule  to  be  universal. 

See  the  case  of  Dillard  vs.  Collins,  25  Grat.,  343,  cited  ante, 
Section  2897. 

See  the  case  of  Hanshrough  et  ux.  vs.  Stinnet,  25  Grat.,  495, 
cited  ante^  Section  2897. 

See  the  case  of  Chaffin  vs.  Lynch,  598,  cited  arite,  Section 
2897. 

CHAPTEE    CLXV. 

Section  3376. 

In  the  case  of  Lyons  [Surviving  Executor  of  Claiborne)  vs. 
Gregory,  3  H.  &  M.,  237,  decided  November  22,  1808,  it  was 
held:  Where  the  records  of  a  court  have  been  destroyed,  an 
imperfect  minute  of  a  judgment  may  be  admitted  to  record  un- 
der the  act  of  assembly,  in  lieu  of  the  original,  provided  the 
substantial  parts  thereof  appear ;  and  the  record  of  such  minute, 
made  by  order  of  the  court,  is  good  evidence  on  a  plea  of  nul- 
tiel  record,  although  the  clerk  has  failed  to  endorse  upon  it  that 
the  original  was  lost  or  destroyed^  and  has  also  failed  to  make 
an  entry  to  the  same  effect  in  the  record-book. 

What  variances  between  a  judgment  and  the  recital  thereof 
in  a  scire  facias,  or  in  the  judgment  thereupon,  are  not  material. 

In  the  case  of  Smith  vs.  Carter,  3  Rand.,  167,  decided  Feb- 
ruary, 1825,  it  was  held:  Where  a  will  has  been  regularly 
proved  in  a  court  of  probate,  and  afterwards  destroyed  by  the 
enemy,  together  with  the  book  in  which  it  was  recorded,  its 
contents  may  be  proved  by  parol  evidence. 

The  remedy  pointed  out  here  is  only  cumulative,  and  does  not 
deprive  a  party  of  his  remedy  at  common  law. 

In  the  case  of  Bradshaio  vs.  Commonwealth,  16  Grat.,  507, 
decided  September  3,  1860,  it  was  held,  p.  517 :  In  a  prosecu- 
tion for  a  felony  or  a  misdemeanor,  if  the  indictment  is  lost  at 
any  time  before  the  trial,  though  after  arraignment  and  plea,  the 
party  cannot  be  tried. 

The  act  authorizing  a  lost  record  or  paper  to  be  substituted 


Citations  to  the  Code  of  Virginia.  777 

ty  an  authenticated  copy  or  proof  of  its  contents,  applies  only 
to  civil  cases,  and  does  not  extend  to  records  or  papers  in  crimi- 
nal proceedings. 

In  the  case  of  Corbett  vs.  N^utt  {Trustee),  18  Grat.,  624,  de- 
cided April,  1868,  it  was  held,  p.  639 :  Plaintiff  in  unlawful  de- 
tainer proves  he  deposited  the  original  will  of  his  testatrix  with 
the  clerk  of  the  Circuit  Court  of  Richmond,  in  1864.  He  also 
proves  that  the  witness  had  inquired  for  said  paper  of  the  said  clerk 
at  his  office  in  the  city  of  Richmond,  in  whose  custody  the  said 
original  paper  had  been  left ;  that  said  clerk  at  his  request  made 
search  for  said  paper,  and  reported  it  had  been  lost  out  of  his 
possession,  and  destroyed  at  the  time  of  the  tire  in  April,  1865. 
In  the  absence  of  all  suspicion  of  fair*  dealing,  this  testimony  is 
sufficient  to  let  in  a  copy  of  the  will,  of  the  accuracy  of  wMch 
copy  there  is  no  question. 

Upon  proof  that  the  will  had  been  regularly  admitted  to  pro- 
bate in  the  Circuit  Court  of  Richmond,  such  proof  of  the  loss 
and  destruction  of  the  record  will  authorize  the  admission  of  an 
official  copy  of  the  record,  certified  by  the  clerk.  And  this  offi- 
cial copy  having  been  admitted  to  probate  in  the  Orphan's  Court 
of  the  District  of  Columbia,  an  official  copy  from  that  office  is 
admissible. 

In  the  case  of  Dismal  Swamp  Land  Company  vs.  Macauler/s 
Administrators,  85  Va.,  16,  decided  June  4,  1888.  The  cause 
was  on  the  docket  of  the  circuit  court  at  its  last  session  before 
the  war.  All  records  of  that  court  were  destroyed  during  the  war 
except  such  as  were  in  the  attorney's  hands.  In  1881  the  cause 
was  not  on  the  docket,  it  not  appearing  that  it  had  been  legally 
removed.     On  motion  it  was  reinstated.     Held :  No  error. 

In  the  case  of  Hudson  vs.  Yost,  88  Va.,  347,  decided  July  23, 
1891,  it  was  held:  It  is  sufficient  compliance  with  the  Code 
where  sworn  bill  alleges  and  answer  admits  the  destruction  of 
the  original  papers  in  a  cause  wherein  was  a  decree  of  sale  of 
certain  lands,  and  there  is  filed  a  certified  copy  of  the  papers 
from  supreme  court  where  the  cause  was  on  appeal,  and  an  in- 
junction will  not  lie  to  such  sale  on  the  ground  that  "  no  affi- 
davit" of  destruction  was  filed. 

CHAPTER   CLXVI. 

Section  3378. 

See  the  references  given  to  Sections  3211  and  3287. 

In  the  case  of  White  vs.  Archer,  2  Va.  Cases,  201,  decided  by 
the  General  Court,  June  term,  1820,  it  was  held :  A  capias  ad 
respondendum  was  issued  returnable  to  the  rules,  on  the  first 
Monday  in  April,  and  on  that  day  common  order  was  entered ; 
the  first  Monday  in  May  was  the  next  rule  day,  on  which  day 

•  Query  :  "  unfair.". 


778  Citations  to  the  Code  of  Virginia. 

the  common  order  was  confirmed  in  the  ofl&ce ;  on  the  same  day 
the  court  sat.  It  was  not  regular  to  place  that  case  on  the 
office-judgment  docket  of  that  term,  because  the  statute  directs 
that  the  docket  shall  be  made  out  before  every  term. 

In  the  case  of  Hale  vs.  Charaberlain,  13  Grat.,  658,  decided 
February  10,  1857,  it  was  held:  In  a  proceeding  under  the 
statute  to  recover  money  due  upon  contract  by  notice,  the  notice 
must  be  returned  forty  days  before  the  commencement  of  the 
term,  and  put  upon  the  docket  of  the  court,  or  it  cannot  be  tried 
at  that  term. 

The  references  to  29  Grat.,  392  and  395,  are  errors. 

Section  3380. 
In  the  case  of  Ex  Parte  Richardson,  3  Leigh,  343,  decided 
December,  1831,  it  was  held:  The  statute  of  1825-'26,  Chapter 
15,  was  intended  to  prevent  unreasonable  and  causeless  delays 
in  suits  in  chancery,  and,  with  that  view,  the  14th  Section  au- 
thorizes the  court  of  appeals  to  award  a  Tnandamus  to  the  courts 
of  chancery  to  compel  them  to  hear  causes  at  the  first  term  at 
which  they  are  prepared  for  hearing,  when  no  special  cause  ap- 
pears for  the  refusal  of  the  court  to  hear  them,  but  the  statute 
does  not  authorize  a  mandarmis  to  compel  a  hearing  of  the 
cause,  which  the  court  of  chancery,  in  its  discretion,  for  reasons 
satisfactory  to  it,  thinks  proper  to  continue. 

Section  3381. 

In  the  case  of  Pleasants,  Shore  <&  Co.,  and  Anderson  vs.  Ross^ 
1  Wash.,  156,  decided  at  the  spring  term,  1793,  it  was  held: 
The  issue  in  this  cause  was  intended  to  satisfy  the  conscience 
of  the  chancellor.  It  appears  that  his  conscience  was  satisfied, 
but  this  court  has  the  power  of  examining  and  correcting  hi& 
decrees  and  will  be  guided  by  the  same  conscientious  prin- 
ciples. 

In  the  case  of  Southall  vs.  McEeand,  Mayo,  et  als.,  1  Wash.,, 
336,  decided  at  the  fall  term,  1794,  it  was  held :  The  verdict  in 
an  issue  directed  out  of  chancery  ought  not  to  stand  when  there 
is  a  certificate  of  the  judges  therewith  certifying  that  the  weight 
of  evidence  is  against  such  verdict. 

In  the  case  of  Pry  or  vs.  Adams,  1  Call,  382  (2d  edition,  332), 
decided  October  25,  1798,  it  was  held :  The  court  of  chancery 
should  judge  on  the  proofs  before  it,  and  in  a  clear  case  should' 
decree  thereon  without  directing  an  issue. 

In  the  case  of  Milson  vs.  Pucker,  1  Call,  500  (2d  edition,. 
435),  decided  May  4,  1799,  it  was  held :  The  court  of  chancery 
may,  on  granting  a  new  trial  in  the  same  court,  order  the  ver- 
dict to  be  certified  into  the  court  of  chancery,  and  proceed  to- 
make  a  final  decree  in  the  cause. 


Citations  to  the  Code  of  Virginia.  779 

In  the  case  of  Stannard  vs.  Blayde's  Executors,  2  Call,  369 
(2d  edition,  310),  decided  November  5,  1800,  it  was  held :  After 
three  verdicts,  the  court  of  chancery  did  right  in  decreeing  ac- 
cording to  the  opinion  of  the  juries. 

If  the  court  before  which  the  issues  are  tried  is  dissatisfied 
with  the  verdict,  this  dissatisfaction  must  be  certified  in  the  re- 
cord of  the  court,  or,  if  refused,  it  must  be  put  on  the  record  by 
a  bill  of  exceptions.  It  cannot  be  supplied  by  affidavits,  espe- 
cially those  of  counsel  in  the  cause. 

The  discretion  of  the  chancellor  is  to  be  exercised  on  sound 
principles,  of  which  this  court  may  judge. 

In  the  case  of  Ilooe  vs.  Marquess,  4  Call,  416,  decided  Octo- 
ber, 1798.  The  court  of  appeals,  where  a  son  had  obtained  a 
deed  from  his  father  for  ninety  acres  of  land  and  five  slaves,  in 
consideration  of  one  pound  sixteen  shillings  and  maintenance 
for  life,  after  which  he  sold  the  land  to  a  third  person,  who  filed 
a  bill  alleging  that  deed  to  have  been  recorded,  but  to  have 
been  afterwards  destroyed,  another  substituted  in  its  room,  and 
the  land  sold  again  by  the  first  donor  to  a  purchaser  with  no- 
tice of  the  plaintiff's  title,  whose  deed  had  not  been  recorded, 
ordered  an  issue  to  try  whether  there  was  such  substitution  of 
one  deed  for  another,  and,  if  so,  what  were  the  terms  of  the 
first  deed. 

In  the  case  of  McCall  vs.  Graham,  1  H.  &  M.,  12,  decided 
September  27,  1806,  it  was  held :  Where  an  issue  is  directed  by 
the  court  of  chancery  to  be  tried  at  law,  any  papers  may  be 
read  at  the  trial  of  such  issue  which  were  read  upon  the  hear- 
ing of  the  cause,  or  at  a  former  trial. 

In  the  case  of  Rowton  vs.  Rowton,  1  H.  &  M.,  91,  decided 
November  5, 1806,  it  was  held :  The  directing  of  an  issue  for  the 
purpose  of  ascertaining  disputed  facts  is  discretionary  with  a 
court  of  equity,  which  may  decide  on  the  evidence  relative  to 
such  facts  without  a  jury. 

.  In  the  case  of  McRae's  Executor  vs.  Wood's  Executor,  1  H.  & 
M.,  548,  decided  November  12,  1807,  it  was  held :  After  two 
concurring  verdicts  for  the  same  party  on  an  issue  directed  by 
the  chancellor  to  be  tried  at  common  law,  he  is  not  bound  to  di- 
rect a  new  trial,  not^vithstanding  both  verdicts  were  in  opposi- 
tion to  the  opinions  of  the  judges  before  whom  the  issues  were 
tried,  and  a  verdict  had  originally  been  rendered  in  favor  of  the 
other  party. 

In  tlie  case  of  Gait  and  Garland  vs.  Carter,  6  Munf.,  245,  de- 
cided December  2,  1818,  it  was  held :  Upon  a  bill  of  injunction 
to  prevent  the  sale,  under  execution,  of  slaves  divided  in  trust, 
if  the  defendants  allege  that  the  cestui  que  tru^t  was  entitled  to 
the  slaves  by  five  years'  possession  before  the  death  of  the  de- 
visor, and  the  truth  of  such  allegation  be  doubtful  on  the  evi- 


780  Citations  to  the  Code  of  Virginia. 

dence,  tlie  chancellor  ouglit  to  direct  an  issue  to  ascertain  that 
fact. 

In  the  case  of  Cocke  vs.  Upshaw  and  Pritcliett  {Exeautors  of 
Burnett)^  6  Munf.,  464,  decided  January  18,  1820,  it  was  held: 
In  such  case,  if  the  fact  of  the  secret  partnership  be  doubtful 
on  the  testimony,  the  court  should  direct  an  issue  to  ascertain  it. 

In  the  case  of  Carter  vs.  Camjybell,  1  Va.  (Gilmer),  159,  de- 
cided October  25,  1820,  it  was  held:  In  a  case  proper  for  an 
issue  the  verdict  is  conclusive  when  the  evidence  is  conflicting. 

In  the  case  of  Samuel  vs.  Marshall  and  Wife  et  als.,  3  Leigh, 
567,  decided  March,  1832,  it  was  held:  If  the  evidence  on  a 
question  of  fact  in  a  suit  in  chancery,  though  various  and  con- 
flicting, be  such  as  ouglit  to  satisfy  the  chancellor's  conscience 
as  to  the  truth  of  the  case,  he  need  not  direct  an  issue  to  try 
the  fact. 

In  the  case  of  Grigshy  vs.  Weaver,  5  Leigh,  197,  decided 
April,  1834.  Upon  a  bill  in  chancery  for  relief  against  a  con- 
tract alleged  to  be  usurious,  the  chancellor  directs  an  issue  to  be 
tried  at  law  to  ascertain  whether  the  contract  was  usurious  or 
not;  the  jury  finds  the  contract  not  usurious;  the  judge  of  the 
court  of  law  certifies  that  the  verdict  in  his  opinion  is  contrary 
to  the  law  and  the  evidence,  and  certifies  also  the  substance  of 
the  evidence  adduced  at  the  trial,  some  of  which  does  not  relate 
to  the  points  put  in  issue  by  the  pleadings  in  equity.  The 
chancellor  refuses  to  set  aside  the  verdict  (being  himself  satis- 
fied it  is  right)  and  to  order  a  new  trial  of  the  issue,  and  dis- 
misses plaintiff's  bill.  Held:  It  was  a  matter  of  sound  discre- 
tion whether  the  chancellor  should  direct  the  issue  or  decide  the 
questions  of  fact  himself,  and  like  matter  of  discretion  whether 
he  should  set  aside  the  verdict  on  the  issue  or  not ;  and  in  the 
exercise  of  such  discretion  in  this  case  he  properly  refused  to 
set  aside  the  verdict  and  order  a  new  trial  of  the  issue ;  he  was 
not  bound  to  set  it  aside  in  deference  to  the  certificate  of  the 
judge  of  the  court  of  law  against  it. 

In  the  case  of  Watkins  et  ux.  vs.  Carlton,  10  Leigh,  560  (2d  edi- 
tion, 586),  decided  January,  1840.  Upon  a  trial  at  law  of  issues 
out  of  chancery,  exceptions  are  filed  to  opinions  of  the  court 
and  made  part  of  the  record ;  the  court  of  law  certifies  the  ver- 
dict, but  it  does  not  expressly  certify,  nor  is  it  asked  to  certify, 
the  exceptions.  Held :  All  the  proceedings  upon  the  trial  of  the 
issues  spread  upon  the  record  thereof  constitute  part  of  the 
certificate  of  the  verdict,  and  with  it  become  part  of  the  chan- 
cery record. 

A  court  of  chancery  directs  issues  of  facts  to  be  tried  at  law 
without  evidence  regularly  taken  before  the  court  touching  the 
facts  to  which  the  issues  relate,  but  there  was  evidence  which, 
if  regular,  would  have  rendered  the  order  for  the  issues  proper. 


Citations  to  the  Code  of  Virginia.  781 

Held :  That  if  the  appellate  court  should  set  aside  the  issues 
for  being,  in  the  actual  state  of  the  case,  improperly  ordered,  it 
should,  under  such  circumstances,  remand  the  cause  to  the 
court  of  chancery,  where  the  evidence  may  be  regularly  taken, 
and  thereupon  the  issues  ordered  anew. 

See  the  case  of  JVe/wti's  Administrator  vs.  Armstrong  et  als., 
5  Grat.,  354,  cited  ante,  Section  2836. 

In  the  case  of  Isler  and  Wife  vs.  Grove  and  Wife,  8  Grat., 
257,  decided  October,  1851,  it  was  held:  Where  the  subject- 
matter  in  controversy  is  of  the  nature  of  estimated  and  unliqui- 
dated damages,  and  the  accuracy  and  credit  of  the  witnesses  is 
impeached,  an  issue  should  be  directed. 

In  the  case  of  Reed  vs.  Cline's  Heir's,  9  Grat.,  136,  decided 
August  2,  1852,  it  was  held :  In  a  suit  in  equity^  if  there  be  no 
conflict  between  diflferent  portions  of  the  evidence,  no  ambig- 
uity or  uncertainty  in  it,  but  a  simple  failure  to  prove  material 
facts,  it  is  improper  to  direct  an  issue. 

In  the  case  of  Wise  vs.  Lamh,  9  Grat.,  294,  decided  August 
28,  1852,  it  was  held :  It  is  error  to  direct  an  issue  out  of  chan- 
cery when  the  only  evidence  which  can  be  produced  in  support 
of  the  bill  is  clearly  incompetent  from  any  cause. 

In  the  case  of  Lee's  Executor  vs.  Boah,  11  Grat.,  182,  decided 
April,  1854,  it  was  held :  Where  an  issue  is  directed  in  a  chan- 
cery cause,  and  a  verdict  is  found  to  which  no  exception  is 
taken,  and  a  decree  is  rendered  thereon,  the  facts  found  in  the 
verdict  must  be  regarded  in  the  appellate  court  as  the  estab- 
lished facts  of  the  case. 

In  the  case  of  Smith's  Administrator  vs.  Betty  et  als.,  11  Grat., 
752,  decided  October,  1854,  it  was  held :  In  a  chancery  cause, 
if  upon  the  state  of  proofs  at  the  time  an  issue  is  directed  the 
bill  should  be  dismissed,  it  is  erit)r  to  direct  it ;  and  although 
the  issue  is  found  in  favor  of  the  plaintiff,  the  bill  should  not- 
withstanding be  dismissed  at  the  hearing.  When  the  allega- 
tions of  the  bill  are  positively  denied  by  the  answer,  and  the 
plaintiff  has  failed  to  furnish  two  witnesses,  or  one  witness  and 
corroborating  circumstances,  in  support  of  the  bill,  it  is  error  to 
direct  an  issue.  The  ontis  must  be  shifted  and  the  case  ren- 
dered doubtful  by  the  conflicting  evidence  of  the  opposing 
parties  before  an  issue  should  be  ordered. 

In  the  case  of  Beverly  vs.  Walden,  20  Grat.,  147,  decided  No- 
vember, 1870,  it  was  held :  Whether  a  court  of  equity  will  direct 
an  issue  to  be  tried  by  a  jury  is  a  question  of  discretion ;  but  it 
is  a  sound  judicial  discretion,  and  if  improperly  exercised  an 
appellate  court  will  direct  it. 

When  the  allegations  of  the  bill  are  positively  denied  by  the 
answer,  and  the  plaintiff  has  failed  to  produce  two  witnesses,  or 
one  witness  and  strong  corroborating  circumstances  in  support 


782  Citations  to  'the  Code  op  Virginia. 

of  the  bill,  it  is  error  in  the  chancellor  to  order  an  issue;  no 
issue  should  be  ordered  until  the  plaintiff  has  thrown  the  Ijur- 
den  of  proof  on  the  defendant. 

In  the  case  of  Powell  et  ux.  vs.  Manson,  22  Grat.,  177,  decided 
April  17,  1872,  it  was  held:  Upon  the  trial  of  an  issue  out  of 
chancery,  depositions  taken  in  the  cause  in  the  chancery  court 
are  not  to  be  read  to  the  jury,  unless  proof  be  given  that  the 
witnesses  are  dead,  or  abroad,  or  otherwise  unable  to  attend 
the  trial. 

Upon  the  trial  of  an  issue  out  of  chancery,  the  bill  is  not 
proof  of  its  allegations,  except  so  far  as  these  allegations  are 
admitted  to  be  true  by  the  answer.  And  the  answer  is  not 
proof  of  the  allegations  therein  contained,  unless  the  allegations 
in  the  answer  a^  to  facts  be  positive,  and  responsive  to  some 
allegation  of  the  bill;  and  to  be  responsive  such  allegations  of 
the  answer  must  not  be  either  evasive  or  contradictory. 

On  the  trial  of  an  issue  out  of  chancery,  the  rule  of  evidence 
is  the  same  as  on  the  hearing  in  the  chancery  court ;  and  the 
allegations  of  the  answer  responsive  to  the  bill  must  be  taken 
as  true,  unless  contradicted  by  two  witnesses,  or  one  witness 
and  corroborating  circumstances. 

Upon  a  motion  for  a  new  trial  of  an  issue  out  of  chancery, 
on  the  ground  that  the  verdict  is  contrary  to  the  law  and  the 
evidence,  the  judge  overruling  the  motion  refuses  to  certify 
the  facts  proved  because  the  testimony  was  conflicting ;  but  all 
the  oral  testimony  is  certified.  The  court  will  consider  not 
merely  whether  the  evidence  adduced  before  the  jury  warrants 
the  verdict,  but  also  whether,  having  regard  to  the  whole  case, 
farther  investigation  is  necessary  to  attain  the  ends  of  justice. 
In  such  a  case,  although  there  may  have  been  a  misdirection 
by  the  court,  or  evidence  m^  have  been  improperly  rejected, 
a  new  trial  will  not  be  granted,  if  the  verdict  appears  to  be 
right,  upon  a  consideration  of  all  the  evidence,  including  that 
which  was  rejected. 

In  the  case  of  Nagle  vs.  Newton,  22  Grat.,  814,  decided  De- 
cember 11,  1872.  N.  sues  J.  in  equity  to  rescind  or  enforce 
specific  execution  of  a  contract  for  the  sale  of  land  by  N.  to  J. 
J.  answers,  not  objecting  to  a  specific  execution,  but  insisting 
that  he  shall  be  compensated  for  injuries  to  which  he  has  been 
subjected  by  the  failure  of  N.  to  comply  with  his  contract,  and 
by  the  intermeddling  of  N.  and  his  agents  with  J.'s  possession 
of  the  land  and  the  property  upon  it.  Held  :  The  case  being  a 
proper  one  for  decreeing  specific  execution  of  the  contract,  the 
court  has  jurisdiction,  as  ancillary  thereto,  to  decree  compensa- 
tion to  J.  for  the  damages  he  has  sustained  by  the  improper 
acts  of  N.  and  his  agents. 

The  damages  may  be  ascertained  either  by  a  commission  or 


Citations  to  the  Code  of  Virginia.  783 

"by  an  issue  of  quantum  damnificattts  to  be  tried  at  the  bar  of  the 
<50urt. 

In  the  case  of  Lavell  vs.  GoWs  Administrator,  25  Grat.,  473, 
decided  September,  1874.  In  a  chancery  cause  the  court  directs 
an  issue  to  be  tried  at  its  bar.  This  issue  is  tried  on  the  com- 
mon law  side  of  the  court,  and  the  verdict  is  certified  to  the 
chancery  side  of  the  court,  and  there  is  a  motion  to  set  it  aside 
for  a  new  trial.  The  court  sets  aside  the  verdict,  and  directs  a 
new  trial  of  the  issue  as  amended  by  him,  he  being  the  same 
judge  who  presided  at  the  trial  of  the  issue.  Held :  It  is  not 
necessary  for  the  judge  sitting  on  the  common  law  side  of  the 
court  to  certify  to  himself  on  the  chancery  side  that  he  is  dissat- 
isfied with  the  verdict ;  but  he  may  set  it  aside  without  such  cer- 
tificate. 

Another  judge  holding  a  subsequent  term  cannot  set  aside  the 
order  of  the  judge  at  the  previous  term  and  reinstate  the  verdict. 

If  the  party  objecting  to  set  aside  the  verdict  is  dissatisfied 
with  the  order,  he  should  except  to  it,  and  have  the  facts  proved 
on  trial,  or  the  evidence  spread  upon  the  record,  and  thus  the 
order  may  be  reviewed. 

In  the  case  of  Steptoe  vs.  Flood's  Administrator,  31  Grat., 
323,  decided  January,  1879,  it  was  held:  On  the  trial  of  an  issue 
out  of  chancery,  the  plaintiff  in  the  issue  relies  upon  a  receipt 
to  which  there  is  an  attesting  witness,  but  both  the  principal  and 
the  witness  are  dead.  The  plaintiff  having  proved  the  hand- 
writing of  the  witness,  the  defendant  may  introduce  the  testimony 
of  witnesses  to  prove  that  the  name  of  the  principal  to  the  re- 
ceipt is  not  in  his  own  handwriting. 

There  being  great  conflict  of  opinion  among  the  witnesses  as 
to  the  genuineness  of  the  liandwritiDg  of  the  principal  to  the 
receipt,  the  verdict  of  the  jury  against  it  will  not  be  disturbed. 

The  court  will  not  set  aside  the  verdict  of  the  jury  on  the  cer- 
tificate or  affidavit  of  two  of  the  jurors,  that  they  thought  the 
receipt  proved  and  ought  to  be  considered;  but  the  other  mem- 
bers of  the  jury  insisted  that  the  receipt  had  nothing  to  do  with 
the  case,  and  they  were  persuaded  against  their  judgment. 

It  is  the  general  rule  in  ordinary  trials  that  a  verdict  will  not 
be  disturbed  upon  the  affidavits  of  jurors,  and  this  is  so  in  the 
case  of  an  issue  out  of  chancery  especially. 

In  the  case  of  Sno^iffers  {Administrator^)  vs.  Ilansbrough,  79 
Va.,  166,  decided  July  22,  1884,  it  was  held:  Where,  because 
of  conflict  in  testimony,  an  issue  is  directed,  the  solution  whereof 
depends  on  credibility  of  witnesses,  and  the  verdict  is  sanctioned 
by  the  trial  court,  the  settled  rule  is  that  the  appellate  court  will 
consider  not  merely  whether  the  evidence  waiTants  the  verdict, 
but  also  whether  upon  the  whole  farther  investigation  is  neces- 
sary to  justice,  and  though  there  may  have  been  misdirection, 


784  Citations  to  the  Code  op  Virginu. 

or  improper  rejection  of  evidence,  it  will  not  grant  a  new  trial 
if,  on  considering  all  the  evidence,  including  that  rejected,  the 
verdict  appears  to  be  right. 

At  trial  of  issue,  whether  vendee  was  induced  to  buy  by  ven- 
dor's misrepresentatijon  as  to  boundaries,  evidence  of  the  value 
of  the  land  at  time  of  sale  and  since  is  admissible,  as  tending 
to  disprove  imposition.  At  such  trial,  though  instructions  that 
vendee  must  be  held  to  have  had  notice,  from  the  written  con- 
tract of  sale  and  the  title  papers  therein  referred  to,  that  the 
purchased  tract  included  one  hundred  and  thirty-five  acres  of 
mountain  land,  might  not  have  been  directly  relevant  to  the 
issue,  the  solution  whereof  depended  on  the  credit  the  jury  at- 
tached to  the  witnesses,  yet  the  instruction  could  not  affect  the 
verdict,  and,  even  if  erroneous,  is  no  ground  of  reversal.  At 
such  trial,  that  jury  shall  weigh  defendant's  answer  instead  of 
merely  the  parts  responsive  to  the  bill,  though  rather  broad,  is 
not  error  for  which  the  verdict  will  be  set  aside.  Where  at 
such  trial  impartially  had  the  verdict  could  not  have  been  dif- 
ferent had  a  certain  instruction  been  given,  the  refusal  to  give 
the  instruction  is  not  error  for  which  the  verdict  will  be  set 
aside.  And  the  rule  is  the  same  where  the  court  gives,  in  lieu 
of  instructions  asked  for  by  a  party,  others  substantially  em- 
bodying the  same  ideas. 

In  the  case  of  Crebs  vs.  Jones,  79  Va.,  381,  decided  Septem- 
ber 25,  1884,  it  was  held :  The  object  of  trying  by  juries  such 
issues  is  to  satisfy  the  chancellor's  conscience  where  the  evi- 
dence is  contradictory,  but  the  court  is  not  bound  to  direct  an 
issue  merely  because  the  evidence  is  contradictory.  The  ex- 
pense and  delay  of  such  trials  are  to  be  incurred  only  where 
the  court,  exercising  sound  discretion,  thinks  it  necessary,  ex- 
cept in  certain  cases  where  they  are  matters  of  right. 

In  the  case  of  Carter  vs.  Carter^  82  Va.,  624,  decided  Decem- 
ber 2,  1886,  it  was  held :  Legal  discretion  lies  in  the  chancellor 
to  direct  or  refuse  an  issue  to  be  tried  by  a  jury ;  but  the  appel- 
late court  must  judge  whether  or  not  such  discretion  has  been 
soundly  exercised,  whenever  the  ruling  impliedly  involves  a  set- 
tlement of  the  principles  of  the  case. 

•  Where  plaintiff  avers  that  certain  deeds  were  procured  by 
the  fraud  of  the  prior  grantee  from  their  common  grantor, 
when  she  was  mentally  incapable  of  conveying,  and  both  the 
grantor  and  prior  grantee,  by  their  answers,  positively  deny 
every  material  averment,  and  plaintiff  fails  to  present  two  wit- 
nesses, or  one  and  corroborating  circumstances,  in  support  of  the 
bill,  or  even  to  throw  the  burden  of  proof  on  the  defendant, 
and  to  render  the  case  doubtful  by  conflicting  evidence,  no 
issue  need  be  directed. 

This  is  the  case  cited  from  11  Virginia  Law  Journal,  275. 


Citations  to  the  Code  of  Virginia.  785 

In  the  case  of  Loftus  vs.  Moloney,  89  Va.,  576,  decided  Jan- 
uary 26,  1893,  it  was  held :  An  issue  out  of  chancery  is  not  al- 
lowable except  to  aid  and  satisfy  the  chancellor  in  cases  where 
the  evidence  is  so  conflicting  as  to  make  him  doubt  what  his 
decision  should  be. 

Section  3383. 

In  the  case  of  McMillion  vs.  Dohhins,  9  Leigh,  422,  decided 
July,  1838,  it  was  held :  In  an  action  on  the  case,  if  there  be  an 
office-judgment  against  the  defendant,  with  a  writ  of  inquiry,  and 
afterwards,  without  any  plea  in  the  cause,  the  jury  be  sworn  as 
if  there  was  an  issue,  and  a  verdict  be  found  for  the  defendant, 
the  verdict  will  be  set  aside  and  a  new  trial  directed. 

In  the  case  of  Ilewit  vs.  The  Commonwealth,  17  Grat.,  627, 
decided  April  19,  1867,  it  was  held :  A  motion  for  a  continuance 
is  addressed  to  the  sound  discretion  of  the  court,  under  all  the 
circumstances  of  the  case,  and  although  an  appellate  court  will 
supervise  the  action  of  an  inferior  court  on  such  a  motion,  it 
will  not  reverse  a  judgment  on  that  ground,  unless  such  action 
was  plainly  erroneous. 

As  a  general  rule,  where  a  witness  for  a  party  fails  to  appear 
at  the  time  appointed  for  the  trial,  if  such  party  show  that  a 
subpmna  for  the  witness  has  been  returned  executed,  or,  if  not  so 
returned,  was  delivered  to  the  proper  officer  of  the  county  or 
corporation  in  which  the  witness  resides  a  reasonable  time 
before  the  time  for  the  trial,  and  shall  swear  that  the  witness  is 
material,  and  that  he  cannot  safely  go  to  trial  without  his  testi- 
mony, a  continuance  ought  to  be  granted,  if  there  be  reasonable 
grounds  to  believe  that  the  attendance  of  the  witness  at  the 
next  term  of  the  court  can  be  secured,  especially  if  the  case  has 
not  been  before  continued  for  the  same  cause. 

Where  the  circumstances  satisfy  the  court  that  the  real  pur- 
pose in  moving  for  the  continuance  is  to  delay  or  evade  a  trial, 
and  not  to  prepare  for  it,  then,  though  the  witnesses  have  been 
summoned,  and  the  party  has  sworn  to  their  materiality,  and 
that  he  cannot  safely  go  to  trial  without  them,  the  continuance 
should  be  refused. 

In  the  case  of  Ilarman  vs.  Howe,  27  Grat.,  676,  decided  June, 
1876,  it  was  held,  p.  686 :  A  motion  for  a  continuance  is  ad- 
dressed to  the  sound  discretion  of  the  court,  under  all  the  cir- 
cumstances of  the  case,  and  although  an  appellate  court  will 
supervise  the  action  of  an  inferior  court  on  such  a  motion,  it 
will  not  reverse  a  judgment  on  that  ground,  unless  such  action 
was  plainly  erroneous. 

Where  the  circumstances  satisfy  the  court  that  the  real  pur- 
pose in  moving  for  a  continuance  is  to  delay  or  evade  a  trial, 
and  not  to  prepare  for  it,  thep,  though  the  witnesses  have  been 
summoned,  and  the  party  has  sworn  to  their  materiality,  and 
50 


786  CrrATioNS  to  the  Code  of  Virginia. 

that  lie  cannot  safelj  go  to  trial  without  them,  the  continuance 
should  be  refused. 

Where  the  circumstances  are  such  as  to  induce  the  court  to 
doubt  the  motives  of  the  parties  in  moving  for  a  continuance, 
the  court  may  require  him  to  state  what  he  expects  to  prove  by 
the  absent  witness,  and  if  such  proof  would  not  effect  the  result 
the  motion  should  be  overruled. 

In  the  case  of  Rousell  vs.  The  Commonwealth,  28  Grat.,  930, 
decided  January,  1877,  it  was  held :  B.  is  indicted  for  larceny 
in  the  Corporation  Court  of  Norfolk,  in  October,  1875.  The 
clerk,  at  her  instance,  twice  sends  a  suhposna  for  C.  as  a  witness 
to  the  sheriff  of  Surry,  where  C.  lives,  which  are  returned  "  came 
too  late  to  serve."  He  sends  another,  wliich  is  not  returned. 
In  June  the  case  is  continued  for  the  Commonwealth.  The 
counsel  of  R.,  relying  on  the  practice  of  other  clerks  to  issue 
suhpmnas  for  a  witness  directed  to  be  summoned,  does  not  direct 
the  issue  of  one  to  the  October  term,  and  one  is  not  issued,  and 
C.  is  not  present  when,  on  the  2d  of  October,  the  case  is  called  at 
that  term.  The  court  continues  the  case  until  the  ninth,  and  the 
clerk  by  the  first  mail  (the  next  day)  sends  a  svhpoena  for  C.  to 
the  sheriff  of  Surry,  but  on  the  ninth  the  writ  is  not  returned 
nor  is  the  witness  present.  Though  the  counsel  for  R.  states  in 
writing  that  he  has  conversed  with  C.  and  that  he  will  prove 
material  facts,  which  he  states  in  favor  of  R.,  and  R.  swears  that 
C.  is  a  material  witness  for  her,  and  she  cannot  go  safely  to 
trial  without  him,  and  that  she  can  prove  by  him  the  facts  stated 
by  the  counsel,  the  court  is  justified  in  refusing  a  continuance  of 
the  cause. 

In  the  case  of  ^Yalton.  vs.  The  Commonwealth,  32  Grat.,  855, 
decided  January  16,  1879.  The  principles  governing  the  court 
on  motions  for  a  continuance  in  criminal  cases  as  stated  in 
Hewit's  case,  17  Grat.,  627-29,  approved  and  acted  on. 

Section  3384. 

The  case  of  Syme  vs.  Jude  [Executor)^  3  Call,  522  (2d  edi- 
tion, 452),  decided  June  30,  1790,  was  submitted  to  the  jury, 
who  not  agreeing,  a  juror  was  withdrawn  by  consent.  In  this 
stage  of  the  proceedings  the  plaintiff  was  permitted  to  amend 
his  declaration,  the  cause  being  in  paper,  notwithstanding  the 
jury  had  been  sworn,  as  no  verdict  was  rendered,  during  which 
time  amendments  in  favor  of  justice  are  within  the  discretion  of 
the  court. 

In  the  case  of  Tabh  vs.  Gregory,  4  Call,  225,  decided  April, 
1792,  it  was  held:  Amendment  to  the  declaration  may  be  al- 
lowed during  the  trial  of  the  issue,  but,  if  the  defendant  request 
it,  the  jury  should  be  discharged,  the  defendant  be  permitted  to 
amend  his  plea,  or  to  plead  anew,  and  the  cause  should  be  con- 
tinued. 


\ 


Citations  to  the  Code  of  Virginia.  787 

In  the  case  of  Anderson  vs.  Dudley,  5  Call,  529,  decided  Oc- 
tober, 1805,  it  was  held :  Upon  trial  of  the  issue  of  nul  tiel  re- 
€07'd,  the  court  may  allow  an  amendment  of  the  declaration, 
and,  if  the  defendant  consent,  may  proceed  with  the  trial. 

See  the  case  of  Perkins  {Administrator)  vs.  Hawkins's  Ad- 
ministrators, 9  Grat.,  649  and  653-'54,  ante,  Section  3298. 

In  the  case  of  Beasley  vs.  Robinson,  24  Grat.,  325,  decided 
January,  1874,  it  was  held :  A  notice  is  addressed  by  B.  to  K., 
late  sheriff,  and  to  his  surviving  sureties  by  name,  survivors  of 
themselves  and  of  James  Sims.  On  the  trial  B.  introduces  the 
bond,  which  is  signed  by  R.  and  all  the  surviving  sureties ;  but 
it  is  objected  to  as  evidence,  because  the  name  described  in  the 
address  of  the  notice  as  James  Sims  is  written  Jos.  Sin.  This 
is  not  a  material  variance,  and  the  bond  should  be  admitted  as 
evidence.  The  court  having  excluded  the  bond  for  the  variance, 
B.  proposes  to  introduce  the  record  of  the  court  setting  out  the 
qualification  of  R.  as  sheriff,  and  the  names  of  his  sureties,  of 
whom  James  Sims  is  one,  who  signed,  sealed,  and  acknowledged 
the  said  bond.  But  the  defendants  objected  to  the  introduction 
of  said  evidence  and  the  admission  of  said  bond.  The  record 
is  proper  evidence,  and  should  be  admitted.  If  it  could  be  con- 
sidered a  case  of  variance  between  the  pleadings  and  the  proofs, 
it  would  have  been  such  an  one  as  might,  and  ought  to,  have 
been  cured  by  an  amendment  according  to  the  Code. 

In  the  case  of  Tlie  New  York  Life  Insurance  Company  vs. 
Ilendren,  24  Grat.,  536,  decided  March,  1874,  it  was  held :  In 
an  action  on  a  policy  of  insurance  the  declaration  omitted  one 
of  the  conditions  endorsed  upon  it ;  and  on  the  trial,  when  the 
policy  is  offered  in  evidence,  it  is  objected  to  for  the  variance. 
The  court  may  allow  the  plaintiff  to  amend  the  declaration  by 
inserting  the  omitted  condition,  and  may  then  proceed  with  the 
trial. 

In  the  case  of  Carter  et  (ds.  vs.  Grant's  Adrrurs,  32  Grat.,  769, 
decided  February  5,  1880,  it  was  held,  p.  777 :  On  proceeding 
upon  a  forthcoming  bond  given  on  a  distress  for  rent,  whether 
by  motion  or  by  action  on  the  bond,  the  plaintiff  must  prove 
the  contract  of  rent  for  which  the  distress  was  sued  out.  On 
such  a  proceeding,  though  the  warrant  of  distress  was  for  more 
rent  than  was  due,  the  plaintiff  may  have  judgment  for  the  less 
amount  due. 

In  the  case  of  Forbes  &  Allers  vs.  Ilagman,  76  Va.,  168,  de- 
cided January  13,  1881,  it  was  held,  pp.  193-'95 :  The  record  in 
the  action  of  F.  d?  A.  vs.  //.  <J&  G.  is  competent  evidence  in  the 
case  for  the  plaintiffs,  and  slight  variances  between  the  declara- 
tion and  the  record,  which  would  not  prevent  the  record  in  the 
present  case  from  being  a  bar  to  another  action  for  the  same 
cause,  are  not  sufl&cient  to  exclude  it. 


788  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Alexandria  c&  Fredericksburg  Railroad  Com- 
j^any  vs.  Ileryidon,  87  Va.,  193,  decided  December  4,  1890,  it 
was  held :  At  trial,  in  case  of  variance  between  declaration  and 
evidence,  the  court  may  allow  the  former  to  be  amended  by 
striking  out  immaterial  words  without  remanding  the  case  to 
rules. 

Section  ;3385. 

In  the  case  of  Washington  and  New  Orleans  Telegraph  Com- 
pany vs.  Hobson  &  Son,  15  Grat.,  122,  decided  April,  1859,  it 
was  held:  On  an  exception  to  an  opinion  of  the  court  over- 
ruling a  motion  for  a  new  trial  on  the  ground  that  the 
verdict  is  contrary  to  the  evidence,  if  the  exception  states 
neither  the  facts  proved  nor  the  evidence  introduced  on  the 
trial,  nor  refers  to  another  bill  of  exceptions  in  which  all  the 
facts  or  evidence  given  on  the  trial  are  shown  to  be  stated,  the 
appellate  court  cannot  review  the  judgment  of  the  court  below. 

It  must  appear  from  the  record  that  a  point  decided  by  the 
court  has  been  saved  before  the  jury  retires,  though  the  excep- 
tion may  be  prepared,  and  may  be  signed  by  the  judge,  either 
during  the  trial  or  after  it  is  over,  during  the  same  term.  If  this 
appears  from  the  whole  record,  it  is  sufficient,  though  not  ex- 
pressly stated  in  the  bill  of  exceptions ;  but  if  it  does  not  so  ap- 
pear from  the  record,  the  appellate  court  cannot  review  the 
judgment  of  the  court  below  upon  the  point. 

In  the  case  of  Peei"y  vs.  Peery,  26  Grat.,  320,  decided  June 
30,  1875,  it  was  held,  p.  324 :  Though  a  plaintiff  moves  the 
court,  before  the  jury  retires  to  consider  of  their  verdict,  to  ex- 
clude certain  evidence  which  had  been  given  on  the  trial,  which 
the  court  refuses  to  do  if  notice  of  a  purpose  to  except  to  the 
ruling  of  the  coart  is  not  given  until  the  jury  come  into  court 
with  their  verdict,  the  exception  is  too  late. 

In  the  case  of  ^Vinstony^.  Giles,  ^1  Grat.,  530,  decided  March, 
1876,  it  was  held :  In  an  action  at  law  which  is  submitted  to  the 
judgment  of  the  court  without  a  jury  the  court  renders  a  judg- 
ment to  which  one  party  excepts,  and  it  being  near  the  end  of 
the  term,  the  court  gives  the  counsel  time  until  the  first  day  of 
the  next  term  to  prepare  the  bill  of  exception,  but  judgment  is 
entered.  The  court  cannot  give  such  leave,  and  the  bill  of  ex- 
ception cannot  be  made  a  part  of  the  record. 

Even  if  the  court  had  the  authority  to  give  the  time  until  a 
day  certain  in  the  next  term  to  prepare  the  bill  of  exception,  if 
the  bill  of  exception  is  not  tendered  to  the  court  on  that  day 
it  cannot  afterwards  be  received. 

In  cases  when  it  may  be  important  to  give  time  until  the  next 
term  to  prepare  the  bill  of  exception,  the  case  should  be  kept 
open,  and  the  judgment  should  not  be  entered  until  the  next  term. 

In  the  case  of  Page  vs.  Clopton,  30  Grat.,  415  and  427-'30^ 


Citations  to  the  Code  of  Virginia.  789 

decided  July,  1878.  On  the  22d  of  March,  1878,  C,  a  judge  in 
court,  imposed  a  fine  on  P.,  an  attorney,  for  alleged  contemptuous 
behavior  in  the  presence  of  the  court,  and  at  the  same  time  a 
motion  was  made  by  another  attorney  to  remit  the  fine,  which 
motion  was  continued  until  a  further  day.  On  the  25th  of  the 
same  month,  the  court  overruled  the  motion  to  remit  the  fine, 
and  ordered  the  sergeant  to  take  P.  in  custody  and  detain  him 
until  the  fine  was  paid.  P.  was  in  court  on  both  of  these  days, 
and  no  exception  was  taken  to  the  action  of  the  court.  On  the 
27th  of  the  same  month,  and  during  the  same  term.  P.,  who  had 
paid  the  fine  under  protest,  appeared  in  court  and  offered  to  ac- 
cept the  judgment  imposing  the  fine,  and  moved  the  court  to 
certify  the  facts,  which,  for  reasons  stated  by  the  court,  was  re- 
fused. No  bills  of  exceptions  appear  to  have  been  tendered 
this  day,  but  on  the  30th  day  of  the  same  month,  the  last  day  of 
the  term,  P.  tendered  three  bills  of  exceptions  to  the  judgment 
and  rulings  of  the  court,  which  the  judge  refused  to  sign,  and  P. 
applied  for  a  mandamus  to  compel  him  to  sign  the  same.  Held : 
The  writ  of  mandamus  will  lie  to  compel  the  judge  to  sign  bills 
of  exceptions  in  this  case,  if  "the  truth  of  the  case  be  fairly 
stated  therein." 

When  a  bill  of  exceptions  is  tendered  which  does  not  fairly 
state  the  truth  of  the  case,  it  is  the  duty  of  the  judge,  with  the 
aid  of  the  counsel,  to  settle  the  bill,  and  when  settled  to  sign 
it,  and  if  he  refuse  to  do  this,  inandamus  will  lie  to  com- 
pel him.  The  usual  practice  is  to  give  notice  of  the  excep- 
tions at  the  time  the  decision  is  made,  and  reserve  liberty 
to  draw  up  and  present  the  bill  for  settlement  and  signing, 
either  during  the  trial  or  after  the  trial,  and  during  the  term  at 
which  final  judgment  is  rendered;  and  it  will  be  disregarded 
in  the  appellate  court  if  signed  after  the  end  of  such  term  as 
may  be  allowed  by  the  court ;  but  it  must  be  signed  during  the 
term  at  which  final  judgment  is  rendered,  and  it  will  be  disre- 
garded in  the  appellate  court  if  signed  at  the  end  of  such  term, 
although  signed  pursuant  to  a  previous  order  allowing  it,  unless, 
perhaps,  such  order  be  made  by  consent  of  parties. 

The  rule  as  to  notice  of  intention  to  take  an  exception,  or  of 
taking  it  at  the  time  of  the  ruling,  does  not  apply  to  a  case  like 
the  present,  in  which  the  exceptant  and  the  judge  are  the  only 
parties  concerned. 

In  the  case  of  Danmlle  Bank  vs.  WaddilVs  Administrators, 
31  Grat.,  469,  decided  February  6,  1879,  it  was  held,  pp.  474- 
478 :  If  an  instruction  is  given  to  the  jury  without  objection  at 
the  time,  and  no  exception,  or  notice  of  exception,  is  taken  or 
given  before  the  verdict  is  rendered,  the  giving  of  the  instruc- 
tion cannot  be  the  ground  for  setting  aside  the  verdict  and 
panting  a  new  trial  of  the  cause. 


790  Citations  to  the  Code  of  Yirginia. 

In  the  case  of  Ilarman  vs.  Ihe  City  of  Lynchhurg,  33  Grat.^ 
37,  decided  March  11,  1880,  it  was  held,  pp.  43-44:  When  ex^ 
ception  is  taken  to  the  admission  or  exclusion  of  evidence,  or 
to  the  granting  or  refusing  of  instructions,  or,  indeed,  to  any 
other  ruling  of  the  court  below  at  the  trial,  the  bill  should  be 
so  framed,  by  the  insertion  of  the  proper  matter,  as  to  make 
the  error,  if  any,  apparent;  otherwise  the  exception  wdll  gener- 
ally be  unavailing. 

In  the  case  of  Powell,  who  sues  for,  etc.,  vs.  Torry's  Adminis- 
trator, 77  Va.,  250,  decided  March  15,  1883,  it  was  held:  Un- 
less by  record  it  appears  that  points  decided  by  the  court  be- 
low were  saved  before  the  jury  retired,  they  cannot  be  reviewed 
by  the  appellate  court.  But  a  bill  of  exceptions  may  be  pre- 
pared and  signed  at  any  time  during  the  term. 

When  evidence  conflicts,  the  court  may  refuse  to  certify  facts^ 
proved,  but  must  certify  the  evidence  on  motion  of  any  suitor. 

Unless  the  evidence  given  is  before  the  appellate  court,  it 
cannot  pass  on  instructions  given  or  refused. 

Lack  of  time,  or  lapse  of  memory,  is  no  excuse  for  a  judge's 
refusal  to  certify  the  evidence  on  the  trial  of.  a  cause  before 
him,  or  to  perform  any  other  duty  imposed  on  him  by  law. 

To  compel  a  judge  to  certify  evidence  a  mandamus  lies ;  but 
his  refusal  is  error  reviewable  in  the  appellate  court  on  com- 
plaint of  the  party  injured.  To  deny  certificate  of  evidence  is 
to  deny  the  suitor  his  right  of  appeal. 

In  the  case  of  Hoses  vs.  Cromwell,  78  Va.,  671,  decided  March 
13,  1884,  it  was  held :  A  bill  of  exceptions  cannot  be  properly 
and  regularly  added  to  the  record  of  a  case  after  the  case  is^ 
ended  by  final  judgment,  and  the  power  of  the  court  over  it  haa 
ended  by  the  close  of  the  term. 

In  the  case  of  Brown  vs.  Hall,  85  Va.,  146,  decided  July  19, 
1888,  it  was  held :  Though,  to  avoid  confusion,  it  is  better  to 
take  a  separate  bill  of  exceptions  to  each  ruling  of  the  trial- 
court,  yet  it  is  allowable  in  this  State  to  embody  in  one  bill  ex- 
ceptions to  several  rulings,  set  forth  with  sufficient  particularity,. 

In  the  case  of  Bransford  (Treasure?')  vs.  Karn  ds  HicksoUy 
87  Va.,  242,  decided  December  11,  1890,  it  was  held:  A  refusal 
of  a  judge  to  sign  a  bill  of  exceptions,  when  the  record  does  not 
show  that  the  losing  party  excepted  at  the  trial  to  the  ruling  of 
the  court,  cannot  be  maintained  as  error. 

Section  3387. 

In  the  case  of  David  Ross  vs.  Gill  et  ux.,  1  Wash.,  87,  de- 
cided at  the  spring  term,  1792,  it  was  held :  The  court  has  na 
power  to  direct  a  non-suit,  however  destitute  the  plaintiff  might 
be  of  a  right  to  recover. 

In  the  case  of  Champ's  Executor  vs.  Jett,  1  Wash.,  138,  de- 


Citations  to  the  Code  of  Virginia.  791 

cided  at  the  fall  term,  1792,  it  was  held :  When  the  court  has 
directed  a  non-suit,  to  which  the  plaintiff  submits,  he  abandons 
his  cause,  and  cannot,  in  an  appellate  court,  object  to  the  opin- 
ion of  the  court  below  in  granting  it. 

In  the  case  of  Tarpley's  Administrators  vs.  Dohyns,  1  Wash., 
185,  decided  at  the  spring  term,  1793.  The  plaintiff  pursued 
his  remedy  at  law,  and,  after  a  verdict  for  the  defendant,  sought 
relief  in  equity.  Held :  The  plaintiff,  when  he  discovered  a  dis- 
position on  the  part  of  the  defendant  to  avail  himself  of  a  legal 
advantage,  should  have  suffered  a  non-suit,  and  have  sought 
relief  in  equity  if  his  case  would  bear  it. 

In  the  case  of  Thweat  <&  Ilinton  vs.  Finch,  1  Wash.,  217,  de- 
cided at  the  fall  term,  1793,  it  was  held :  Upon  a  motion  for  a 
non-suit  the  court  may  give  their  opinion  that  the  plaintiff  has 
no  cause  of  action,  and  may  direct  him  to  be  called.  But  he 
may  nevertheless  appear  and  refuse  to  be  non-suited,  nor  can 
the  court  compel  him  against  his  will. 

In  the  case  of  Calvert  vs.  Bowdoiji,  4  Call,  217,  decided  June, 
1791,  it  was  held  :  If  the  evidence  differs  from  the  statement  in 
the  declaration,  judgment  of  non-suit  will  be  given  by  the  court 
of  error,  and  the  cause  will  not  be  sent  back  to  the  court  below 
with  a  direction  to  call  the  plaintiff,  or  to  instruct  the  jury  that 
the  evidence  does  not  support  the  declaration. 

In  the  case  of  Pinner  et  als.  vs.  Price  {Administrator),  6 
Rand.,  676,  decided  by  the  General  Court,  November,  1828,  it 
was  held:  The  damages  of  five  dollars,  given  by  the  act  of 
assembly  in  case  of  non-suits,  ought  to  be  awarded  in  all  cases 
of  dismissions  and  discontinuances  produced  by  a  voluntary 
abandonment  of  the  cause  by  the  plaintiff  after  the  defendant's 
appearance,  whether  in  the  office  or  in  court,  and  such  dismis- 
sion ought  to  be  entered  up  as  non-suits.  But  the  dismission 
of  a  suit  for  a  failure  to  give  security  for  costs  is  not  such  a 
voluntary  abandonment  as  authorizes  this  judgment.  In  the 
case  of  a  retraxit  these  damages  ought  not  to  be  awarded. 

In  the  case  of  Walkers  vs.  Boaz,  2  Rob.,  485,  decided  No- 
vember, 1843.  A  non-suit  in  a  writ  of  right  having  been  suf- 
fered under  a  misapprehension  on  the  part  of  the  demandants 
and  their  counsel  as  to  the  legal  effect  of  an  instruction  given  at 
the  trial,  held:  The  court,  in  the  exercise  of  a  sound  discre- 
tion, should,  on  the  motion  of  the  demandants,  have  set  aside 
the  non-suit ;  and  this  not  having  been  done,  the  judgment  over- 
ruling such  motion  was  reversed. 

Section  3388. 
In  the  case  of  ITansbrough  et  iix.  vs.  Stinnet,  25  Grat.,  495, 
decided  November  19,  1874,  it  was  held,  p.  505 :  A  deposition 
which  has   been    read  to   the  jury  may  be    taken   with  them 


792  Citations  to  the  Code  of  Virginia. 

in  their   retirement,  if  what  is  objectionable  in   it  has  been 
erased. 

Section  3390. 

In  the  case  of  Baker  vs.  Morris's  Administrator,  10  Leigh, 
285  (2d  edition,  294),  decided  May,  1839,  it  was  held:  It  seems 
that  in  an  action  of  debt  on  a  bond  at  law  the  surplus  interest 
beyond  the  penalty  may  be  given  in  the  form  of  damages. 

In  the  case  of  Hepburn  vs.  Dundass,  13  Grat.,  219,  decided 
March  7,  1856,  it  was  held :  Prior  to  this  statute  interest  could 
not  be  allowed  by  a  jury,  in  an  ejectment,  upon  the  profits;  and 
the  jury  having  allowed  such  interest  it  is  mere  surplusage,  and 
the  judgment  will  be  for  the  principal  sum  and  interest  from  the 
date  of  the  verdict. 

In  the  case  of  TazewelVs  Executors  vs.  Saunders  s  Executor, 
13  Grat.,  354,  decided  May  23,  1856,  it  was  held :  Courts  of 
equity  will  decree  interest  upon  a  bond  or  judgment  beyond  the 
penalty  against  the  principal  debtor. 

In  the  case  of  Lewis  vs.  Arnold,  13  Grat.,  454,  decided  Au- 
gust 27,  1856,  it  was  held :  Upon  a  judgment  in  an  action  for 
a  tort  depending  when  the  statute  went  into  eifect,  it  is  proper 
to  charge  interest  from  the  date  of  the  verdict. 

In  the  case  of  Roberts  Administrator  vs.  Cocke,  etc.,  Murphy 
vs.  Gaskin's  Administrator,  28  Grat.,  207,  decided  March,  1877, 
it  was  held :  Where  during  the  late  war  a  creditor  resided  in 
the  territory  of  one  of  the  belligerent  powers,  and  his  debtor 
within  that  of  the  other  said  power,  such  debtor  would,  under 
the  rules  of  public  law,  be  entitled  to  an  abatement  of  interest 
during  the  time  the  war  lasted. 

Where  the  debtor  and  the  creditor  resided  within  the  same 
territory  the  mere  existence  of  war  does  not  alone  furnish  any 
legal  ground  for  the  abatement  of  interest  upon  contracts  during 
the  time  such  war  lasted. 

In  contracts  for  the  payment  of  a  certain  sum  of  money,  in- 
terest on  the  principal  sum  is  a  legal  incident  of  the  debt,  and  the 
right  to  it  is  founded  upon  the  presumed  intention  of  the  parties. 

Wherever  there  is  a  contract,  expressed  or  implied,  for  the 
payment  of  legal  interest,  the  obligation  of  the  contract  extends 
as  well  to  the  payment  of  interest  as  it  does  to  the  payment  of 
the  principal  sum,  and  neither  the  courts  nor  the  juries  ever  had 
the  arbitrary  power  to  dispense  with  the  performance  of  such 
contracts  either  in  whole  or  in  part. 

In  the  case  of  Cecil  \s..Der/erle  et  als.,  28  Grat.,  775,  decided 
July,  1877,  it  was  held,  p.  783 :  The  act  of  the  General  As- 
sembly approved  April  2,  1873,  entitled  "An  act  to  amend  and 
re-enact  Section  14,  Chapter  187,  of  the  Code  of  1860  in  rela- 
tion to  interest,"  so  far  as  the  said  act  confers  upon  courts  and 
juries  in  the  suits  therein  mentioned  power  to  remit  interest  as 


Citations  to  the  Code  of  Virginia.  793 

therein  provided,  on  contracts  entered  prior  to  April  10,  1865, 
which  said  courts  and  juries  did  not  have  under  the  laws  in  force 
at  the  time  such  contracts  were  entered  into,  is  repugnant  to  the 
Constitution  of  the  United  States  and  of  this  State,  and  is  so  far 
null  and  void.  And  so  much  of  the  said  act  as  empowers  the 
courts  to  review  judgments  and  decrees  upon  motion,  and  to 
abate  interest  as  in  said  act  provided,  is  repugnant  to  the  Con- 
stitution of  the  United  States  and  this  State,  and  therefore  void. 
And  this  though  the  evidence  of  debt  on  which  the  judgments 
are  founded  does  not  provide  in  terms  for  the  payment  of  in- 
terest, but  the  judgments  are  for  interest. 

In  the  case  of  Kent's  Administrator  vs.  Kenfs  Administrator, 
28  Grat.,  840,  decided  July,  1877.  On  a  bond  dated  June  6, 
1845,  payable  on  demand,  in  which  there  is  nothing  said  about 
interest,  on  which  judgment  was  rendered  March  12,  1874,  and 
in  which  judgment  the  circuit  court,  simply  by  virtue  of  the  act 
of  April  2,  1873,  above  recited,  there  being  no  evidence  on  the 
question  of  interest  before  it,  abated  the  interest  from  April  17, 
1861,  to  April  10,  1865.  Held:  The  bond  is  payable  presently, 
and  bears  interest  from  its  date  until  it  is  paid ;  that  there  is  an 
implied  contract  to  pay  said  interest,  and  that  said  act  allowing 
the  abatement  within  the  periods  mentioned  impairs  that  con- 
tract, and  is  therefore  null  and  void. 

In  the  case  of  Cecil  &  Perry  vs.  Hicks,  29  Grat.,  1,  decided 
September  1877.  C.  and  P.  executed  their  single  bill  dated 
October  18,  1871,  whereby  they  promised  six  months  after  date 
to  pay  H.  or  order  the  sum  of  seven  thousand  dollars,  with  in- 
terest at  the  rate  of  12  per  centum  per  annum  from  date.  Held  : 
The  contract  for  interest  at  the  rate  of  12  per  cent,  per  annum 
was  legal  under  the  constitutional  provision  in  force  at  the  time 
of  the  contract,  and  it  is  not  aflfected  by  the  subsequent  aboli- 
tion of  that  provision. 

The  obligors  in  the  bond  are  bound  to  pay  interest  at  the 
rate  of  12  per  centum  per  annum  not  only  up  to  the  maturity  of 
the  bond,  but  after  maturity  and  until  the  payment  thereof. 

In  the  case  of  King  vs.  Buck  et  als.,  30  Grat.,  828,  decided 
October  3,  1878,  it  was  held,  p.  831 :  Under  Section  2821,  the 
judgment  is  to  be  for  the  principal  sum  ascertained  to  be  due 
after  deducting  the  usury  and  interest  on  that  principal  from 
the  date  of  the  judgment. 

In  the  case  of  Brewster  vs.  Wakefield,  22  Howard,  118,  de- 
cided December,  1859.  While  Minnesota  was  a  territory  the 
following  statute  was  passed : 

Section  1.  Any  rate  of  interest  agreed  upon  by  the  parties  in 
contract,  specifying  the  same  in  writing,  shall  be  legal  and  valid. 

2.  When  no  rate  of  interest  is  agreed  upon  or  specified  in  a  note 
or  other  contract,  7  per  cent,  per  annum  shall  be  the  legal  rate. 


794  Citations  to  the  Code  op  Virginia. 

Where  a  party  gave  two  promissory  notes,  in  one  of  which 
he  promised  to  pay  twelve  months  after  the  date  thereof  a  sum 
of  money,  with  interest  thereon  at  the  rate  of  20  per  cent,  per 
annum  from  the  date  thereof,  and  in  another  promised  to  pay 
another  sum,  six  months  from  date,  with  interest  at  the  rate  of 
2  per  cent,  per  month,  the  mode  of  computing  interest  under^ 
the  statute  was  to  calculate  the  interest  stipulated  for  up  to  the 
time  when  the  notes  became  due,  and  after  that  time  at  the  rate 
of  7  per  cent,  per  annum. 

In  the  case  oiBurnhisel  vs.  Firman,  22  Wallace,  170,  decided 
October,  1874,  it  was  held:  When  a  party  agrees  by  note  to 
pay  a  certain  sum  at  the  expiration  of  the  year,  with  interest  on 
it  at  a  rate  named,  the  rate  being  higher  than  the  customary 
one  of  the  State  or  territory  where  he  lives,  and  does  not  pay 
the  note  at  the  expiration  of  the  year,  it  bears  interest  not  at 
the  old  rate,  but  at  the  customary  or  statute  rate. 

In  the  case  of  Cromwell  vs.  The  County  of  Sac,  96  IT.  S.  S.  C. , 
Reports,  51,  decided  October,  1877,  it  was  held,  p.  61:  When- 
at  the  place  of  contract  the  rate  of  interest  differs  from  that  at 
the  place  of  payment,  the  parties  may  stipulate  for  either  rate,, 
and  the  contract  will  govern. 

In  the  case  of  Ilolden  vs.  Trust  Company,  100  U.  S.  S.  C. 
Reports,  72,  decided  October,  1879,  it  was  held :  In  the  District 
of  Columbia,  the  legal  rate  of  interest  is  six  per  cent,  per  annum,, 
but  parties  may,  in  writing,  stipulate  for  any  other  rate,  not 
exceeding  ten  per  cent.  Where  a  party  made  there  his  promis- 
sory note,  whereby  he  promised  to  pay  a  certain  sum  named 
therein,  "  with  ten  per  cent,  interest,"  held :  That  interest  should 
be  computed  at  that  rate  up  to  the  maturity  of  the  note,  and ' 
thereafter  at  six  per  cent. 

In  the  case  of  Ewell  vs.  Daggs,  108  U.  S.  S.  C.  Reports,  143, . 
decided  March  26,  1883,  it  was  held:  When  the  amount  of  the; 
face  of  a  note  represents  a  principal  sum  and  interest  thereon 
at  a  rate  higher  than  the  legal  rate,  and  nothing  is  said  in  the 
note  itself  about  interest,  the  note,  after  maturity,  will  bear  in-; 
terest  at  the  legal  rate. 

In  the  case  of  Stayer  vs.  Long,  83  Va.,  715,  decided  Septem- 
ber 22,  1887,  it  was  held:  Where  a  debtor  lawfully  agreed  to  _ 
pay  interest  at  the  rate  of  ten  per  cent,  per  annum,  the  court, 
will  compel  payment,  though  the  debtor's  lands  are  placed  in  a; 
receiver's  hands  at  the  creditor's  instance. 

In  the  case  of  Stuart,  Buchanan  &  Co.  yB.  Hurt,  88  Va.,  343, > 
decided  July  23,  1891,  it  was  held:  In  an  action  of  debt,  on  a 
decree  for  an  amount  of  interest  thereby  found  due  the  plaintiff 
from  the  defendant,  interest  on  the  amount  of  the  decree  may 
be  recovered  in  the  shape  of  damages  for  its  detention,  though 
ijbe  decree  makes  no  provision  for  the  payment  of  interest; 
thereon. 


Citations  to  the  Code  of  Virginia.  795 

Section  3391. 

In  the  case  of  Kerr  &  Co.  vs.  Love,  1  Washington,  172,  de- 
cided at  the  spring  term,  1793,  it  was  held:  Where  accounts 
are  unliquidated  and  disputed,  interest  should  only  be  allowed 
from  the  commencement  of  the  suit. 

In  the  case  of  McConnico  vs.  Curzen^  2  Call,  358  (2d  edition, 
301),  decided  October  30,  1799,  it  was  held :  Interest  cannot  be 
allowed  on  unliquidated  accounts. 

In  the  case  of  Deanes  vs.  Scriha  et  als.,  2  Call,  416  (2d  edi- 
tion, 350),  decided  October  22,  1800,  it  was  held :  The  court  of 
chancery,  on  debts  not  bearing  interest  in  terms,  cannot  carry 
interest  down  below  the  decree. 

In  the  case  of  ^Vaggoner  vs.  Gray's  Administrators,  2  H.  & 
M.,  603,  decided  October  8,  1808,  it  was  held :  Interest  on  an 
unliquidated  account  ought  not  to  be  allowed. 

In  the  case  of  Clanton's  Heirs  vs.  HowelVs  Administrator,  1 
Munf.,  557,  decided  May  16,  1810,  it  was  held:  Interest  on  the 
hire  of  slaves  ought  not  to  be  charged  where  the  right  to  the 
slaves  was  in  dispute,  and  it  was  doubtful  to  whom  the  money, 
when  collected,  should  be  paid,  no  proof  appearing  that  the 
executors  or  administrators  received  any  interest,  or  made  any 
profit. 

In  the  case  of  SnicJcers  vs.  Dorsey,  2  Munf.,  505,  decided  No- 
vember 23, 1811,  it  was  held:  In  general,  since  the  first  of  May, 
1804,  when  interest  is  allowed  in  equity,  it  should  not  stop  at 
the  time  when  the  balance  of  account  is  struck,  nor  at  the  date 
of  the  decree,  but  should  run  to  the  payment  of  such  balance. 

In  the  case  of  Baird  vs.  Bland  et  ah.,  5  Munf.,  492,  decided 
March  19,  1817,  it  was  held :  When  a  person  who  bought  a 
slave  with  lawful  notice  of  a  better  title  is  decreed  to  deliver 
him  and  pay  profits,  interest  ought  to  be  charged  against  him 
upon  the  hires  actually  received  from  other  persons  from  the 
dates  of  his  receipts,  but  not  upon  the  profits  of  such  slave 
while  in  his  own  possession  without  being  hired,  the  same  being 
unliquidated  and  merely  conjectural  sums,  and  which  he  was  in 
no  default  in  not  paying. 

In  the  case  of  Beall  vs.  Silver,  2  Eand.,  401,  decided  March, 
1824,  it  was  held :  A  creditor  having  obtained  judgment  against 
his  debtor,  without  running  interest,  his  execution  is  obstructed 
by  a  fraudulent  conveyance  made  by  the  debtor  of  his  property. 

A  suit  in  chancery  is  then  brought  to  remove  the  obstruction 
of  the  conveyance  and  for  general  relief.  The  chancellor  ought 
to  decree  the  interest,  as  well  as  to  set  aside  the  conveyance ; 
the  prayer  for  general  relief  being  sufficient  to  cover  the  demand 
for  interest. 

In  the  case  of  Selden  vs.  Buchanan  {Executor),  6  Rand.,  465, 
decided  May,  1828,  it  was  held :  The  vendee  of  land  on  a  credit 


796  Citations  to  the  Code  of  Virginia. 

to  whom  a  deed  is  given,  is  not  excused  from  paying  interest  on 
the  purchase-price,  the  payment  of  the  principal  having  been  de- 
layed by  a  third  party,  who  set  up  an  adverse  claim  (and  com- 
menced a  course  of  litigation  which  continued  for  ten  years,  but 
which  terminated  in  favor  of  the  vendee's  title),  the  vendee  having 
continued  all  that  time  in  possession,  and  enjoyed  the  issues 
and  profits. 

Th«  vendor  only  covenanted  to  sell  and  convey  a  perfect  title 
(which  was  so  conveyed,  as  proved  by  the  result  of  the  trial), 
not  that  there  should  be  no  claimants  who  would  sue  for  it ;  he 
therefore  committed  no  breach  of  his  covenant,  and  this  is  no 
ground  to  excuse  the  vendee  from  paying  interest. 

The  trouble  and  expense  of  defending  the  suit  is  what  every, 
one  who  is  sued  is  exposed  to,  and  the  vendee's  costs  cannot  be 
set  off  against  the  interest. 

To  excuse  the  vendee  from  paying  interest  during  the  time 
that  the  adverse  claim  is  in  suit,  it  is  not  sufficient  that  he 
should  be  ready  and  willing  to  pay  the  principal ;  it  ought  also 
to  appear  clearly  that  he  did  in  fact  keep  the  money  useless  and 
unproductive  by  him,  and  that  he  gave  the  vendee  notice  that  it 
was  so  unproductive.  Although  the  adverse  claim  in  this  case 
was  by  the  Commonwealth,  who  proceeded  to  escheat  the  land 
by  inquisition  (which  was  opposed  by  the  vendee  by  a  monstrans 
de  droit,  who  defeated  the  claim),  the  supposed  seisin  in  law 
into  the  hands  of  the  Commonwealth  by  the  office  found,  and 
the  supposed  liability  of  the  vendee  to  the  Commonwealth  for 
the  rents  and  profits,  did  not  prevail  over  the  actual  seisin  of  the 
vendee,  and  as  he  actually  enjoyed  the  issues  and  profits  during 
the  whole  time,  and  by  the  result  became  exempted  from  all  lia- 
bility for  them  to  the  Commonwealth,  that  supposed  legal  seisin 
of  the  Commonwealth  forms  no  excuse  to  the  vendee  for  not 
paying  the  interest  to  the  vendor. 

In  the  case  of  The  Auditor  of  Public  Accounts  vs.  D^igger  <& 
Foley,  3  Leigh,  241,  decided  November,  1881.  A  claim  against 
the  Commonwealth  is  presented  to  the  auditor,  which  is  yet 
doubtful,  and  therefore  the  auditor  disallows  it,  and  an  appeal  is 
taken  from  the  auditor  to  a  court  of  justice,  which  adjudges 
the  claim  against  the  Commonwealth.  Held  :  In  such  case  the 
court  ought  not  to  allow  the  interest. 

In  the  case  of  Waller's  Administrator  et  als.  vs.  Byrd^s  Ad- 
ministrators, 3  Leigh,  729,  decided  May,  1832,  it  was  held :  In- 
terest upon  estimated  hires  and  profits  of  slaves  should  be  al- 
lowed only  from  the  date  of  decree,  and  it  is  error  to  allow 
interest  from  the  date  of  the  report  ascertaining  the  amounts  of 
such  hires  and  profits. 

In  the  case  of  Mercer's  Administrator  vs.  Beale  et  als.,  4 
Leigh,  189,  decided  January,  1833.     In  covenant  by  M.  against 


Citations  to  the  Code  of  Virginia.  797 

B.,  judgment  is  recovered  by  M.  in  1792  for  two  thousand  five 
hundred  pounds  damages;  jl.  fa.  is  sued  out  by  M.  and  re- 
turned nulla  hona ;  then  both  parties  die;  and  afterwards  the 
executor  of  B.  makes  sundry  payments  at  sundry  times  to  M.'s 
administrator.  Held :  All  such  payments  shall  be  applied  to 
the  principal  of  the  debt  due  on  the  judgment,  and  M.  is  only 
entitled  to  the  balance  of  principal,  with  interest  from  the  date 
of  the  judgment,  and  shall  not  be  allowed  to  compute  interest 
on  the  whole  debt  from  date  of  the  judgment,  and  apply  the 
partial  payments  first  to  the  satisfaction  of  interest  so  com- 
puted, and  then  to  the  principal. 

In  the  case  of  Eubank  et  als.  vs.  Halls's  Executor,  4  Leigh,  308, 
decided  February,  1833.  Judgment  upon  nil  dicit  in  county 
court,  entered  on  the  minute-book  "for  specialty  and  costs," 
and  then  entered  at  large  by  the  clerk  in  the  order-book  for 
debt,  with  interest  from  March  1, 1817,  the  date  of  the  specialty, 
though  the  day  of  payment  appointed  in  the  condition  was 
March  1,  1818,  the  clerk,  in  his  entry  in  his  order-book,  follow- 
ing not  the  conditions  of  the  bond  but  a  memorandum  thereon 
endorsed,  that  the  debt,  if  not  punctually  paid,  should  bear  in- 
terest from  the  date  of  the  bond.     Held : 

1.  It  was  error  to  give  interest  from  the  date  of  bond,  instead 
of  the  day  of  payment. 

2.  This  error  was  a  clerical  mistake,  amendable  by  the  court 
at  a  subsequent  term. 

In  the  case  of  Roper  et  als.  vs.  Wren^s  Administrator,  etc.,  6 
Leigh,  38,  decided  February,  1835,  it  was  held:  Interest  should 
not  be  allowed  on  estimated  rents  and  profits. 

See  the  case  of  D.  c&  W.  Kyle  vs.  Roberts's  Executor  et  als., 
6  Leigh,  495,  cited  ante,  Section  2840. 

In  the  case  of  Dunbar's  Executors  vs.  Woodcock's  Executor, 
10  Leigh,  629  (2d  edition,  660),  decided  March,  1840.  A  com- 
missioner's report  shows  a  balance  due  from  the  defendant, 
consisting  entirely  of  interest  found  due  on  an  account  never 
before  settled,  and  states  that  that  balance  of  interest  is  to  bear 
interest  from  a  remote  day;  there  is  no  exception  to  the  report, 
and  the  court  decrees  the  balance  with  interest  accordingly. 
Held :  The  decree  was  erroneous  in  giving  interest  upon  the  in- 
terest from  a  remote  day;  interest  ought  to  be  allowed  only 
from  the  date  of  the  final  decree. 

In  the  case  of  Wilson  vs.  Spencer,  11  Leigh,  260,  decided 
August,  1840.  In  debt  on  a  bond  with  collateral  condition,  the 
jury  who  try  the  issues  find  the  same  for  the  plaintiiT,  and 
assess  his  damages  and  allow  interest  thereon ;  and  their  judg- 
ment is  entered  for  the  damages  so  assessed,  with  interest  and 
costs,  instead  of  being  entered  for  the  penalty  of  the  bond  and 
costs,  to  be  discharged  by  the  damages,  interest  and  costs. 


798  Citations  to  the  Code  of  Virginia. 

Held:  Though  the  judgment  is  not  entered  in  proper  form,  yet 
the  error  in  the  form  producing  no  injury  to  the  defendants, 
the  judgment  will  not  be  reversed  therefor. 

In  the  ease  of  Allen^s  Executer  vs.  Carr  et  ux.  et  ah.,  1  Rob., 
196  (2d  edition,  208).  From  the  time  that  the  guardianship 
terminates,  the  account  between  the  guardian  and  ward  will  be 
stated  upon  the  ordinary  principle  that  prevails  between  debtor 
and  creditor.  Sums  paid  after  that  time  by  the  guardian  to  the 
ward  will  be  credited  at  the  respective  dates  of  such  payment, 
so  as  to  stop  interest  pro  tanto  from  those  dates. 

In  the  case  of  Cross  (Curatrix)  vs.  Cross's  Legatees,  4  Grat , 
257,  decided  January,  1848,  it  was  held :  An  administratrix  or 
other  fiduciary  whose  duty  it  is  to  hire  out  slaves  for  the  benefit 
of  the  cestui  que  trust,  will  be  held  to  account  for  the  interest 
on  their  estimated  hires. 

In  the  case  of  Rosser  {Executor  of  ^^ood)  vs.  Depriest  et  als., 
5  Grat.,  6,  decided  April,  1848,  it  was  held:  An  executor  takes 
bonds  for  purchases  made  at  a  sale  by  himself  of  testator's  per- 
sonal property,  and  it  does  not  appear  when  these  bonds  were 
paid  off.  He  will  be  charged  with  the  principal  of  the  bonds 
in  the  year  when  they  fell  due,  but  with  interest  thereon  only 
from  the  end  of  that  year. 

See  the  references  given  to  Sections  2606  and  2607. 

In  the  case  of  Lewis's  Executor  vs.  Bacoiis  Legatee  and  Ex- 
ecutors, 3  H.  &  M.,  89,  decided  October,  1808,  it  was  held:  A 
creditor  kept  an  account-current  with  his  debtor,  and  also  an 
interest-account,  on  which  he  charged  interest  on  the  several 
items  of  debit  to  a  particular  period,  and  gave  credit  by  inter- 
est on  the  several  payments  to  the  same  period,  and  charged  in 
the  account-current  the  balance  appearing  in  the  interest  ac- 
count. A  balance  being  then  struck,  and  a  new  account  being 
opened,  in  which  interest  was  charged  on  that  balance,  thus 
consisting  of  principal  and  interest,  it  was  held  to  be  compound 
interest,  and  not  allowable. 

In  the  case  of  Childers  vs.  Dean e  and.  Page,  4  Rand.,  406,  de- 
cided July,  1826,  it  was  held:  Compound  interest  will  not  be 
allowed,  except  under  special  circumstances.  An  agreement  at 
the  time  of  the  loan,  that  at  the  end  of  the  year  interest  shall 
become  principal,  or,  after  interest  has  become  due,  an  agree- 
ment that  it  shall  bear  interest  previous  to  such  agreement  will 
not  be  permitted,  as  tending  to  usury.  But  where  a  settlement 
of  accounts  takes  place  after  interest  has  become  due,  and  an 
agreement  is  then  made  that  interest  due  shall  hereafter  carry 
interest ;  or  where  the  principal  and  interest  are  computed  in  a 
master's  report,  and  the  same  is  confirmed ;  in  these  cases  com- 
pound interest  is  lawful. 
,    In  the  case  of  PindalVs  Executor,  etc.,  vs.  The  Bank  of  Mari- 


Citations  to  the  Code  op  Virginia.  799 

etta,  10  Leigh,  481  (2d  edition,  502),  decided  July,  1839.  A 
debtor  owing  a  debt  consisting  of  principal  and  interest,  it  is 
agreed  between  him  and  his  creditor  that  he  shall,  in  the  first 
place,  pay  off  the  principal,  and  that  the  interest  may  for  a  time 
remain  unpaid.  The  creditor,  having  received  money  from  the 
debtor,  applies  it  in  satisfaction  of  the  principal.  Afterwards 
many  years  elapse  without  payment  of  the  interest.  Held :  The 
creditor  is  only  entitled  to  the  interest  due  at  the  time  the  prin- 
cipal was  paid,  and  not  to  interest  on  that  interest,  there  having 
been  no  agreement  to  pay  interest  on  interest. 

In  the  case  of  Fultz  vs.  Davis,  26  Grat,,  903,  decided  Decem- 
ber 2,  1875,  it  was  held,  page  911 :  Where  payments  are  made 
from  time  to  time  on  a  debt  bearing  interest,  the  interest  is  to 
be  computed  on  the  debt  up  to  the  time  of  payment,  and  the 
payment  is  to  be  deducted  from  the  amount,  principal  and  in- 
terest. It  is  error  to  compute  interest  on  payments  to  a  future 
day,  when  the  debt  is  paid  or  settlement  is  made,  and  then  to 
credit  the  payment  and  interest  upon  the  debt,  principal  and 
interest. 

In  the  case  of  Gilbert  vs.  The  Washington  City,  Virginia  Mid- 
land, ajid  Great  Southern  Railroad  Company,  33  Grat.,  586  and 
699,  decided  October  7,  1880.  One  of  the  railroad  companies, 
not  having  been  able  to  pay  the  interest  on  their  bonds,  gave  to 
the  holders  of  the  interest-coupons  the  coupon  bonds  of  the 
company  for  the  amount  of  said  interest.  Held :  The  coupons 
for  interest  bore  interest  from  the  time  they  were  payable. 

Section  3392. 
In  the  case  of  Borland  vs.  Barrett,  76  Va.,  128. 

8.  Idem. — Excessive  Damages.  In  this  case,  as  the  record 
does  not  disclose  a  single  mitigating  circumstance  in  favor  of 
the  defendant,  held :  The  damages  are  not  excessive,  but  if  they 
were,  the  verdict  would  not  be  disturbed  unless  it  showed  that 
the  jury  were  actuated  by  passion,  prejudice,  or  undue  influence, 
or  unless  the  amount  be  grossly  excessive. 

9.  Jurors. — Tampering,  etc.  It  is  highly  reprehensible  for 
the  parties  to  converse  with  the  jurors,  and,  however  innocent, 
it  is  calculated  to  impair  confidence  in  the  impartiality  of  ver- 
dicts, and  it  should  be  frowned  upon  by  the  courts.  But  casual 
conversations  between  parties  and  jurors  during  recess  of  court 
have  never  been  considered  sufl&cient  of  themselves  to  set  aside 
a  verdict. 

10.  Jurors. — Non-Payment  of  Capitation  Tax.  The  point 
that  one  of  the  jurors  had  not  paid  his  capitation  tax  was  not 
raised  until  after  the  verdict,  which  is  met  by  Poindexter's  case, 
33  Grat.,  766. 

In  the  case  of  Amller  vs.  Wyld,  2  Wash.,  47  (1st  edition,  37), 


800  Citations  to  the  Code  of  Yirginia. 

decided  at  October  term,  1794,  it  was  held :  If  the  parties  in  an 
action  at  law  are  at  liberty  by  the  issue  to  go  fully  into  the  ex- 
amination of  evidence,  and,  having  done  so,  a  verdict  is  found, 
after  a  fair  trial,  a  court  of  chancery  ought  not  to  direct  a  new 
trial ;  otherwise  if  part  of  the  evidence  was  suppressed  by  the 
court. 

In  the  case  of  McRae  vs.  Woods,  2  Wash.,  103  (1st  edition, 
80),  decided  at  October  term,  1795,  it  was  held :  If  the  plaintiff 
at  law  recover  more  than  he  is  in  conscience  entitled  to,  and 
there  is  no  standard  by  which  a  court  of  equity  can  ascertain 
the  amount  of  the  excess  unrighteously  recovered,  that  court 
will  set  aside  the  verdict  in  toto. 

In  the  case  of  Picket  vs.  Morris,  2  Wash.,  325  (1st  edition, 
255),  decided  at  October  term,  1796,  it  was  held:  Whenever  a 
case  is  fully  and  fairly  tried  in  a  court  of  law,  the  decision  is  so 
far  binding  that  it  can  only  be  examined  by  an  appellate  court  \ 
chancery  cannot  intervene.  But  if  the  court  of  law  refuse  to 
decide  points  of  law,  or  to  reserve  them,  it  will  submit  such 
point  to  the  jury,  and  if  they  decide  inequitably  chancery  may 
interfere. 

In  the  case  of  Wilson  vs.  Rucker,  1  Call,  500  (2d  edition,  435), 
decided  May  4,  1799,  it  was  held :  The  court  of  chancery  may, 
on  granting  a  new  trial  in  the  same  court,  order  the  verdict  to 
be  certified  into  the  court  of  chancery,  and  proceed  to  make  a 
final  decree  in  the  cause. 

In  the  case  of  Terrell  vs.  Dick,  1  Call,  546  (2d  edition,  474), 
decided  April  16,  1799,  it  was  held:  After  a  cause  has  been 
once  fully  decided  by  a  court  of  common  law,  equity  will  not 
grant  relief. 

In  the  case  of  Foushee  vs.  Lea,  4  Call,  279,  decided  April, 
1795,  it  was  held :  If  the  defendant's  counsel  means  to  move  for 
a  new  trial  because  the  finding  of  the  jury  is  contrary  to  evi- 
dence, he  is  not  bound  to  do  it  at  the  time  the  verdict  is  ren- 
dered, but  may  postpone  it  to  another  day  of  the  term. 

If  the  chancellor  refuses  to  dissolve  the  injunction,  and  the 
parties  consent  that  the  new  trial  shrfll  be  had  in  a  particular 
county,  the  chancellor,  on  the  motion  of  either  party,  may  direct 
the  trial  to  be  at  a  different  place  without  the  assent  of  the 
other. 

In  the  case  of  Meredith  vs.  Johns,  1  H.  &  M.,  585,  decided 
November,  1807,  it  was  held :  After  a  verdict  for  the  plaintiff  in 
an  action  sounding  in  damages,  and  a  refusal  by  the  court  of  law 
to  grant  a  new  trial,  a  court  of  equity  ought  to  cautiously  inter- 
pose. 

In  the  case  of  Anderson  vs.  Fox,  2  H.  &  M.,  245,  decided 
April,  1808,  it  was  held :  An  executor  having  sold  certain  slaves 
which  were  specifically  bequeathed  by  his  testatrix,  having  be- 


Citations  to  the  Code  of  Virginia.  801 

• 

come  the  purchaser  himself,  and  afterwards  recovered  damages 
in  an  action  of  trespass  against  the  sheriff  for  seizing  and  selling 
them  as  the  property  of  the  specific  legatee,  in  whose  possession 
they  were  found,  a  court  of  equity  will  require  an  account 
of  his  administration,  to  ascertain  whether  the  sale  at  which 
he  was  himself  the  purchaser  was  necessary  for  the  payment 
of  debts,  and  (even  if  the  sale  and  purchase  by  himself  be 
justified  by  the  result  of  the  investigation)  will  grant  a  new  triaj 
of  the  issue  in  the  action  of  trespass  (although  no  motion  to 
that  effect  was  made  at  law)  in  case  the  damages  were  excessive 
and  produced  by  erroneous  impressions  on  the  mind  of  the 
jury;  and  where  the  damages  are  evidently  excessive  the  testi- 
mony of  the  jurors  will  be  received  to  declare  the  motives  which 
induced  them  to  give  such  damages. 

In  the  case  of  Price  {Executor)  vs.  FuqucCs  Administrator ^ 
4  Munf.,  68,  decided  February,  1813.  An  executor  being  sued 
on  a  bond  of  his  testator  of  more  than  twenty  years'  standing, 
was  advised  by  his  counsel  to  rely  on  the  presumption  of  pay- 
ment arising  from  the  length  of  time,  and,  supposing  such  pre- 
sumption a  sufficient  defence,  neglected  to  fortify  it  by  other 
testimony  which  was  in  his  power;  in  consequence  of  evidence 
given  by  one  of  the  jurors  in  the  jury-room  a  verdict  was  found 
against  him.  He  moved  for  a  new  trial  on  that  ground,  but  was 
denied  it.  He  afterwards  obtained  a  new  trial  by  applying  to  a 
court  of  equity  on  the  ground  of  mistake  and  accident. 

In  the  case  of  Faulkner's  Administrators  vs.  Harwood,  6 
Rand.,  125,  decided  February,  1828,  it  was  held :  After  a  trial 
at  law,  a  court  of  equity  will  not  grant  a  new  trial  merely  be- 
cause injustice  has  been  done;  but  the  party  applying  for  anew 
trial  must  show  that  he  has  done  everything  that  could  be  rea- 
sonably expected  of  him  to  obtain  relief  at  law. 

A  bill  of  discovery  to  obtain  evidence  which  might  have  been 
useful  in  a  trial  at  law  must  be  filed  pending  the  suit  at  law,  un- 
less some  sufficient  excuse  is  shown  why  it  was  not  filed  at  that 
time. 

In  the  case  of  Knifong  vs.  Hendricks  et  als.,  2  Grat.,  212,  de- 
cided July,  1845,  it  was  held :  Upon  an  application  to  a  court  of 
equity  to  enjoin  a  judgment  at  law,  and  grant  a  new  trial  in  the 
case,  it  is  error  in  the  court  to  perpetuate  the  injunction,  set 
aside  the  judgment,  and  grant  a  new  trial  of  the  cause,  which  had 
been  terminated,  and  to  finally  dispose  of  the  suit  in  equity. 

In  such  a  case  the  judgment  at  law  is  a  security  for  anything 
the  plaintiff  at  law  may  be  entitled  to,  and  a  court  of  equity 
should  continue  the  injunction  and  direct  proper  issues,  and 
upon  the  coming  in  of  the  verdict  should  perpetuate  the  injunc- 
tion, or  dissolve  it  in  whole  or  in  part,  according  to  the  finding 
of  the  jury. 
51 


802  Citations  to  the  Code  op  Virginia. 

The  justices  composing  a  court  before  which  a  cause  is  tried, 
having  left  the  bench  after  the  verdict  was  rendered,  so  that  a 
motion  for  a  new  trial  could  not  be  made  to  them,  a  court  of 
equity  has  jurisdiction  to  award  it. 

In  the  case  of  Griffiths  vs.  Thompson,  4  Grat.,  147,  decided 
October,  1847.  An  action  is  brought  in  1835  and  tried  in  1839 
upon  an  issue  made  upon  the  plea  of  non-assumpsit,  and  there 
is  a  judgment  for  plaintiff. 

Defendant  then  applies  for  an  injunction  to  the  judgment  on 
the  ground  that  he  had  offsets  which  he  had  intended  to  plead, 
but  that  owing  to  the  sickness  of  his  family  at  the  time  when 
the  court  sat,  and  for  some  time  before,  he  was  not  able  to  attend 
the  court  or  prepare  for  trial,  and  that  his  counsel  to  whom  he 
had  communicated  his  defence  was  also  absent.  It  appeared 
that  offsets  were  neither  pleaded  nor  filed,  and  though  one  of 
the  defendant's  counsel  was  present,  no  application  for  a  con- 
tinuance was  made,  nor  was  any  affidavit  filed  upon  which  such 
an  application  could  have  been  based.  Held:  There  was  no 
cause  for  an  injunction  and  new  trial. 

In  the  case  of  Rust  et  als.  vs.  Ware,  6  Grat.,  50,  decided  April, 
1849,  it  was  held :  Judgment  at  law  is  enjoined  on  the  ground  of 
mistake  by  the  jury  ascertained  by  after-discovered  evidence. 

The  subject  of  the  action  being  accounts,  the  court  of  equity 
will  not  direct  a  new  trial  at  law,  but  will  refer  the  accounts  to  a 
commissioner,  and  will  itself  give  the  proper  relief. 

In  the  case  of  Slack  vs.  Woods,  9  Grat.,  40,  decided  July  19, 
1852,  it  was  held,  pp.  42-'3  :  The  party  applying  for  a  new  trial, 
to  entitle  himself  to  it,  must  show  that  he  has  been  guilty  of  no 
laches,  that  he  has  done  everj'thing  that  could  be  reasonably 
required  of  him  to  render  his  defence  effectual  at  law. 

The  reference  to  10  Grat.,  2333,  is  an  error. 

In  the  case  of  Green  <&  Suttle  vs.  Massie,  21  Grat.,  356,  de- 
cided August,  1871,  it  was  held:  If  at  the  hearing  of  a  cause 
the  case  made  upon  the  pleadings  and  proofs  is  one  of  which  a 
court  of  equity  has  no  jurisdiction,  the  bill  should  be  dismissed, 
though  the  defendant  has  made  no  objection  to  the  jurisdiction, 
either  by  demurrer,  plea,  or  answer,  but  has  defended  himself 
on  the  merits.  And  in  such  a  case  an  appellate  court  will  re- 
verse a  decree  in  favor  of  the  plaintiff,  and  dismiss  the  bill, 
though  no  objection  to  the  jurisdiction  was  taken  in  the  court 
below. 

In  the  case  of  Adams  vs.  Hubhard,  25  Grat.,  129,  decided 
June  17,  1874.  An  injunction  to  a  judgment  is  obtained,  and 
whilst  it  is  pending  the  matter  in  dispute  is  referred  to  arbitra- 
tors, who,  after  reading  the  pleadings  and  depositions  and  hear- 
ing oral  evidence,  including  that  of  the  parties,  make  an  award 
that  the  injunction  be  dissolved.     On  a  motion  to  set  aside  the 


Citations  to  the  Code  of  Virginia.  803 

award  on  the  ground  of  after-discovered  evidence,  held:  The 
rules  governing  courts  of  equity  in  awarding  new  trials  in  ac- 
tions at  law  on  the  ground  of  after-discovered  evidence  apply- 
equally  to  motions  to  set  aside  an  award  on  that  ground.  Where 
all  the  evidence  that  was  before  the  arbitrators  is  not  before  the 
court  on  the  motion  to  set  aside  the  award,  the  motion  must  fail. 
Though  the  evidence  in  the  cause  before  the  reference  was  made 
might  have  warranted  the  court  to  direct  a  new  trial,  yet  the 
award  is  in  fact  a  new  trial,  and  the  party  is  not  entitled  to 
another  trial  on  that  evidence. 

In  the  case  of  Wynne  vs.  JVewman^s  Administrator,  etc.,  75 
Va.,  811,  decided  November,  1881.  A  bill  was  brought  to  ob- 
tain a  new  trial  of  an  issue  in  an  action  at  law,  in  which  there 
was  a  verdict  and  a  judgment  for  the  defendant.  At  the  hear- 
ing the  court  annulled  the  judgment,  set  aside  the  verdict,  and 
ordered  a  new  trial  in  the  action  at  law.  A  court  of  chancery 
under  our  system  of  jurisprudence  is  invested  with  no  such 
power  as  this.  It  may  act  on  the  parties,  but  not  directly  on 
the  judgment,  nor  on  the  court  which  rendered  it.  Such  judg- 
ment by  a  court  having  jurisdiction  to  render  it  can  be  vacated 
only  by  some  direct  proceeding  at  law,  either  in  the  court  in 
which  the  judgment  was  recovered  or  in  some  other  court  hav- 
ing appellate  jurisdiction. 

There  are  cases  in  which  the  court  has  required  the  defendant 
in  chancery  to  submit  to  a  new  trial,  and  restrained  him  from 
enforcing  the  judgment  complained  of.  But  the  regular  course, 
it  seems,  would  be  for  the  chancery  court  to  order  such  issues 
as  may  be  proper,  and  to  base  its  decree  on  the  finding  of  the 
jury  at  the  hearing,  either  dissolving  or  perpetuating  the  in- 
junction in  whole  or  in  part,  according  to  circumstances. 

In  the  present  case,  if  a  new  trial  was  proper  the  court  should 
have  ordered  an  issue,  the  same  as  in  an  action  at  law,  to  be 
tried  as  other  issues  out  of  chancery  are  tried,  the  verdict  of 
the  jury,  if  the  trial  was  in  the  law  court,  to  be  certified  to  the 
chancery  court,  and  in  the  meantime  continue  the  injunction 
until  the  hearing  of  the  cause ;  and  if  the  finding  was  for  the 
defendant,  and  approved,  dissolve  the  injunction;  if  for  the 
plaintiff,  perpetuate  the  injunction  and  decree  for  the  com- 
plainant according  to  the  verdict. 

Courts  of  equity  as  well  as  courts  of  law  sometimes  grant  new 
trials  on  the  ground  of  after-discovered  evidence,  but  always 
with  great  reluctance,  and  never  except  under  special  circum- 
stances, which  may  be  summed  up  thus:  1.  The  evidence  must 
have  been  discovered  since  the  trial.  2.  It  must  be  evidence 
that  could  not  have  been  discovered  before  the  trial  by  the 
plaintiff  or  defendant,  as  the  case  may  be,  by  the  exercise  of 
reasonable  diligence.     3.  It  must  be  material  in  its  object,  and 


504  Citations  to  the  Code  op  Virginia. 

snch  as  ought  on  another  trial  to  produce  an  opposite  result  oi» 
the  merits.  4.  It  must  not  be  merely  cumulative,  corroborative,, 
or  collateral. 

Evidence  newly  discovered  is  said  to  be  cumulative  in  its  re- 
lation to  the  evidence  on  the  trial  when  it  is  of  the  same  kind 
and  character.  If  it  is  dissimilar  in  kind,  it  is  not  cumulative 
in  a  legal  sense,  though  it  tends  to  prove  the  same  proposition  ; 
and  the  discovery  of  evidence,  though  not  strictly  cumulative,  is 
not  sufficient  if  it  does  not  bear  directly  on  the  issue,  but  is  col- 
lateral only. 

The  appellate  court — and  this  is  equally  applicable  to  a  chan- 
cery court  considering  a  bill  for  a  new  trial  on  the  ground  of 
after-discovered  evidence — will  not  on  that  ground  interfere 
with  the  decision  of  the  trying  court,  unless  it  has  before  it  all 
the  evidence  heard  in  the  latter  court;  and  the  observance  of 
this  rule  is  necessary  to  prevent  the  granting  of  new  trials  in 
consequence  of  the  discovery  of  merely  cumulative  facts  and 
circumstances  relating  to  matters  which  may  have  been  contro- 
verted on  the  former  trial. 

In  the  case  of  Smith  vs.  Rawlingi 8  Administrator  et  als., 
83  Va.,  674,  decided  September,  1887,  it  was  held :  Plaintiff 
claimed,  as  purchaser  at  a  sale  under  execution,  the  property 
levied  on  by  defendent ;  the  issue  was  tried  on  the  first  day  of 
the  term,  in  plaintiff's  absence;  written  evidence  of  plaintiff's 
title  was  produced ;  defendant  testified  to  statements  of  plaintiff 
that  he  had  released  the  property  to  the  execution  debtor ;  ver- 
dict was  for  the  defendant.  During  the  term  plaintiff  filed  his 
affidavit  that  he  had  started  in  time  for  the  trial,  and  had  failed 
to  reach  the  court-house  in  time  on  account  of  delays  in  the 
trains  and  their  failure  to  connect;  that  he  never  made  said 
statements,  and  that  never  having  released,  he  still  owned,  the 
property.     He  was  entitled  to  a  new  trial. 

In  the  case  of  Bertha  Zinc  Com^pany  vs.  Black'' s  Adminis- 
trator, 88  Va.,  303,  it  was  held :  While  under  this  section  the 
question  of  a  new  trial,  where  the  damages  are  too  small  or  too 
large,  is  under  the  control  of  the  court,  yet  the  verdict  will  not 
be  disturbed  unless  it  shows  the  jury  were  actuated  by  passion, 
prejudice,  or  undue  influence. 

Section  3393. 

In  the  case  of  Atwell  [Administrator)  vs.  lowles,  1  Munf., 
175,  decided  April  19,  1810,  it  was  held :  In  an  action  of  debt 
on  a  bond  the  judgment  is  always  entered  for  the  penalty,  to 
be  discharged  by  the  principal  and  interest. 

In  the  case  of  Tennant  [Executor)  vs.  Chay,  5  Munf.,  494,  de- 
cided March  22,  1817,  it  was  held:  Where  the  principal  and 
interest  due  on  a  bond  amounts  to  more  than  the  penalty,  and 


Citations  to  the  Code  of  Virginia.  805 

•damages  are  found  by  a  verdict,  judgment  ought  not  to  be  en- 
tered for  the  penalty  and  costs,  to  be  discharged  by  the  principal 
and  interest,  with  the  damages  so  assessed  and  the  costs,  but 
for  the  penalty  and  damages  if  not  exceeding  those  laid  in  the 
writ. 

In  the  case  of  Waller  vs.  Long,  6  Munf.,  71,  decided  January 

20,  1818,  it  was  held  :  If  a  bond  be  given  in  the  usual  form  with 
a  penalty,  conditioned  to  be  discharged  by  payment  of  the 
principal  at  a  future  day,  "  -wdth  interest  from  the  date  if  not 
punctually  paid,"  such  back  interest  is  to  be  considered  an  ad- 
ditional penalty,  and  not  recoverable.  The  clause  in  our  act  of 
Assembly  which  prescribes  the  sum  for  which  judgment  is  to 
be  rendered  on  a  bond  meant,  that  in  cases  of  penalties  by  way 
of  security  the  final  justice  of  the  case  should  be  attained  in 
the  courts  of  law,  in  effectuating  which  object  those  courts  are 
to  be  governed  by  the  same  considerations  which  influence  the 
courts  of  equity. 

In  the  case  of  Moore  vs.  Fenwick,  1  Va.  (Gilmer),  214,  decided 
March  28,  1821,  it  was  held:  Judgment  on  a  penal  bond  should 
be  for  the  penalty,  to  be  discharged  by  the  payment  of  the  sum 
actually  due. 

In  the  case  oi  Jenkins  vs.  Hurts  Commissioners,  2  Band.,  446, 
decided  May  22,  1824,  it  was  held:  In  a  joint  action  upon  con- 
tract, the  plaintiff  must  have  judgment  against  all  the  defendants 
before  the  court,  or  he  can  have  judgment  against  none. 

If  errors  in  the  pleadings  or  proceedings  are  cured  by  the 
statute  of  jeofails  as  to  one  defendant,  they  are  cured  as  to  all 
defendants. 

In  the  case  of  Baker  vs.  Morris's  Administrator,  10  Leigh, 
285  (2d  edition,  294),  decided  May,  1839,  it  was  held:  Full  in- 
terest is  given  on  the  bond  though  it  exceed  the  penalty.  It 
seems,  that,  in  an  action  of  debt  on  a  bond  at  law,  the  surplus 
interest  beyond  the  penalty  may  be  given  in  the  form  of 
damages. 

In  the  case  of  Fleming  vs.  Toler,  7  Grat.,  310,  decided  April 

21,  1851,  it  was  held:  The  penalty  and  condition  of  a  bond  for 
the  payment  of  money  is  in  the  same  sum.  It  is  proper  to  treat 
it  as  a  single  bill,  and  to  give  judgment  for  the  amount  of  the 
bond,  with  interest  from  the  time  of  payment. 

In  the  case  of  TazeweWs  Executors  vs.  Saunders  s  Executor, 
13  Grat.,  354,  decided  May  23,  1856,  it  was  held:  Courts  of 
equity  will  decree  interest  upon  a  bond  or  judgment  beyond  the 
penalty  against  the  principal  debtor.  A  commissioner  having 
by  mistake  omitted  a  credit  in  ascertaining  the  amount  due 
upon  a  bond,  the  appellate  court  will  correct  the  decree  in  this 
respect,  and  affirm  it  with  costs. 

In  the  case  of  Collier  vs.  The  Southern  Express  Campany,  32 


806  Citations  to  the  Code  op  Vieginia. 

Grat.,  718  and  725-26.  E.  was  employed  by  the  Southern  Ex- 
press Company  as  freight  clerk  at  P.,  and  whilst  so  employed 
executed  a  bond  with  sureties,  by  which,  after  reciting  that, 
whereas  E.  is  to  be  hereafter  employed  by  the  Southern  Ex- 
press Company  in  its  business  of  forwarding  by  different  rail- 
roads, etc.,  packages  of  any  and  all  kinds,  and  movable  property, 
including  money  and  securities  for  money,  E.,  in  consideration 
of  said  employment  and  the  compensation  he  is  to  receive  from 
said  company  for  his  services,  covenants,  etc.,  thai  he  will  well 
and  truly  perform  all  the  duties  required  of  him  in  said  employ- 
ment, and  truly  account  for  all  money,  etc.,  which  may  come  to 
his  possession  or  control  by  said  employment,  etc.,  and  E.  and 
his  sureties  bound  themselves  for  the  faithful  performance  of 
the  above  covenants  by  E,  in  the  penalty  of  $2,000.  After  the 
execution  of  this  bond  E.  was  raised  to  the  office  of  principal 
agent  of  the  company  at  P.,  and  whilst  acting  as  such  principal 
agent  embezzled  money  which  came  to  his  hands.  Held :  There 
being  no  dispute  about  the  facts  it  is  for  the  court  to  construe 
the  instrument,  and  the  jury  are  bound  to  take  the  construction 
of  the  court  as  correct. 

The  obligation,  by  its  terms,  extends  to  any  employment  of 
E.  whilst  acting  as  principal  agent  of  the  company  at  P. 

Section  3394. 

In  the  case  of  Bibb  vs.  Cauthome,  1  Wash,,  91,  decided  at 
the  spring  term,  1792.  Upon  a  sheriff's  bond  for  breach  of  the 
condition,  it  was  held :  Upon  new  breaches  alleged  and  suing 
out  a  scire  facias  for  future  injuries  a  recovery  may  be  had. 

In  the  case  of  Call  vs.  Buffin,  1  Call,  333  (2d  edition,  289), 
decided  May  5,  1798,  it  was  held:  In  a  suit  for  the  penalty  of  a 
bond,  the  penalty  not  being  exhausted,  new  breaches  may  be 
assigned,  and  on  scire  facias  being  sued  out,  farther  damages 
assessed. 

The  reference  to  3  Munf.,  249,  is  an  error. 

In  the  case  of  McDowell  vs.  BurwelVs  Administrator^  4  Rand.,* 
317,  decided  June,  1826,  it  was  held :  An  action  of  debt  will  not 
lie  against  the  surety  of  a  sheriff  on  his  official  bond  to  recover 
the  penalty  imposed  by  law  for  failing  to  return  an  execution. 
Such  penalty  can  only  be  recovered  by  motion,  and  an  action  of 
debt  will  only  lie  for  the  damage  actually  sustained  by  the  sher- 
iff's failure  to  return  the  execution. 

An  averment  of  the  breach  of  the  condition  of  a  bond,  although 
it  may  not  entitle  the  plaintiff  to  all  the  demands,  will  entitle 
him  to  recover  what  he  is  legally  entitled  to  in  consequence  of 
the  breach. 

In  the  case  of  Ooveiifior  {for  Davis)  vs.  Roach,  9  Grat,.  13, 
decided  July  12,  1852.     In  an  action  on  a  constable's  official 


Citations  to  the  Code  op  Virginia.  807 

bond,  the  assignment  of  the  breach  did  not  set  out  specifically 
the  claims  put  into  the  constable's  hands,  but  stated  that  the 
relator  had  placed  divers  claims  in  his  hands  for  collection, 
which  were  particularly  set  out  in  a  receipt  given  by  him  as 
constable,  and  which  was  thereto  annexed,  marked  A.,  and  then 
proceeded  to  aver  the  collection  of  the  moneys  by  the  constable, 
and  his  failure  and  refusal  to  pay  over  to  the  relator.  Held : 
On  demurrer  to  the  breach,  that  it  was  well  assigned. 

In  the  case  of  Sangster  et  als.  vs.  Comnionwealih^  17  Grat., 
124  and  135-37,  decided  October  29,  1866,  it  was  held:  Other 
actions  may  be  maintained  on  an  official  bond,  though  in  pre- 
vious action  judgment  has  been  rendered  for  the  penalty  to  be 
discharged  by  the  sum  assessed  in  that  action,  and  of  such 
further  sums  as  might  be  afterwards  assessed  or  found  due, 
upon  scire  facias  assigning  a  new  breach. 

Section  3395. 

In  the  case  of  Steptoe  vs.  Mead,  19  Grat.,  1,  decided  October 
27,  1868,  it  was  held.  At  common  law  in  a  joint  action  against 
several  parties  there  can  be  but  one  final  judgment,  and  it  must 
be  for  or  against  all  the  defendants;  and  the  rule  is  the  same, 
whether  the  contract  sued  on  is  joint,  or  joint  and  several,  or 
whether  the  action  is  founded  on  several  and  distinct  contracts, 
as  the  maker  and  endorsers  of  a  negotiable  note. 

This  general  rule  does  not  apply  where  the  plea  of  one  of 
the  defendants  admits  the  contract  and  sets  up  a  discharge  by 
matter  subsequent,  as  bankruptcy,  or  where  he  sets  up  a  per- 
sonal disability  at  the  time  of  the  contract  sued  on,  as  infancy, 
and  these  exceptions  apply  equally,  whether  the  contract  is  joint, 
or  joint  and  several. 

The  statute  applies  only  to  cases  in  which  some  of  the  de- 
fendants are  discharged  upon  grounds  merely  personal,  and 
where  the  ground  of  defence  goes  to  the  foundation  of  the  entire 
contract  the  case  remains  as  at  common  law. 

In  the  case  of  Mo^ett  vs.  Bickle,  21  Grat.,  280,  decided  Au- 
gust, 1871,  it  was  held:  In  an  action  of  debt  by  the  holder  of  a 
negotiable  note  against  the  maker  and  four  endorsers,  upon  the 
plea  of  usury  by  the  endorsers,  the  jury  found  that  the  note  was 
endorsed  by  the  first  three  endorsers  for  the  accommodation  of 
the  maker,  and  was  sold  by  him  at  a  usurious  rate  of  interest 
to  the  fourth  endorser,  who  afterwards,  and  before  it  became 
due,  endorsed  it  to  the  holder  for  value.  Upon  this  verdict  the 
court  should  render  a  judgment  in  favor  of  the  maker  and  the 
first  three  endorsers,  and  against  the  fourth  endorser. 

In  the  case  of  Bush  vs.  Campbell,  26  Grat.,  403,  decided  July 
8,  1875.  In  an  action  of  debt  upon  a  bond  against  five  persons, 
upon  one  of  whom  the  process  is  not  served,  by  direction  of  the 


808  Citations  to  the  Code  of  Virginia. 

plaintiff,  the  four  plead  usury  in  the  bond,  and  three  of  them 
plead  severally  non  est  factum,  but  cannot  agree  on  the  plea  of 
usury.  There  is  a  judgment  in  favor  of  the  three,  and  the  case 
is  continued  as  to  the  fourth.  Afterwards  there  is  a  verdict 
against  the  fourth,  and  he  moves  in  arrest  of  judgment.  Held: 
Under  the  statute  there  may  be  judgment  in  favor  of  the  three 
at  one  time,  and  a  judgment  in  favor  of  the  plaintiff  against  the 
fourth  defendant  at  another  time. 

In  the  case  of  Muse  et  als.  vs.  The  Farmers  Bank  of  Virginia, 
27  Grat.,  252,  decided  January,  1876.  B.  brings  an  action  of 
debt  against  F.  &  M.  as  late  partners  and  as  makers  of  a  nego- 
tiable note,  and  against  C.  and  G.  as  endorsers.  The  case  stands 
on  the  office-judgment  docket  at  the  next  term  of  the  court,  when 
F.  files  his  plea  of  nil  debet,  which  is  sworn  to ;  and  on  the  mo- 
tion of  B.  by  his  counsel,  the  cause  is  discontinued  as  to  F. 
The  other  parties  not  appearing,  there  is  a  judgment  by  default 
against  them.     Held:  The  judgment  is  a  valid  judgment. 

Section  3396. 

In  the  case  of  Moss  vs.  Moss's  Administrators,  4  H.  &  M., 
293,  decided  October,  1809,  it  was  held :  In  an  action  against 
several  defendants,  the  capias  being  returned  executed  in  part 
only,  who  appeared  and  defended  the  suit,  and  a  discontinu- 
ance as  to  the  rest  having  taken  place  by  a  failure  to  take  out 
further  process  against  them,  a  judgment  against  the  defend- 
ants in  general  terms  must  be  understood  as  against  those  only 
who  appeared,  notwithstanding  the  declaration  charged  them 
all  as  "in  custody,"  etc.,  and  the  caption  of  the  entry  of  the 
judgment  in  the  order-book  mentioned  the  names  of  all. 

Where  there  was  an  action  on  a  joint  or  several  bond  against 
six  obligors,  and  the  capias,  which  was  against  all,  was  executed 
on  two  only,  it  was  held :  That  the  plaintiff  was  not  bound  to 
send  out  further  process  against  the  rest,  but  might  take  judg- 
ment against  those  two.  In  such  a  case  it  seems  indifferent 
whether  the  declaration  be  against  those  two  only,  or  against 
all  those  named  in  the  writ,  provided  the  bond  be  properly  de- 
scribed. 

In  the  case  of  Shields  vs.  Oney,  5  Munf.,  550,  decided  April 
3,  1817,  it  was  held:  If,  by  direction  of  the  plaintiff',  the  writ  be 
served  on  one  only  of  two  partners  in  trade,  when  the  declara- 
tion shows  that  the  plaintiff  knew  the  names  of  both,  and  he 
gets  a  verdict  upon  the  plea  of  no7i-assumpsit  pleaded  by  the 
partner  upon  whom  the  writ  was  served,  judgment  ought  to  be 
arrested. 

In  the  case  of  Jones  vs.  Doe  {Lessee  of  Carter),  6  Munf.,  105, 
decided  February  5,  1818,  it  was  held :  Upon  a  scire  facias 
against  heirs  and  devisees,  to  revive  a  judgment  in  ejectment. 


Citations  to  the  Code  of  Virginia.  809 

if  one  of  the  defendants  confess  the  plaintiffs  right  to  revive 
the  judgment  in  the  scire  facias  mentioned,  and  thereupon  judg- 
ment be  entered  against  him  that  the  plaintiff  have  execution 
for  the  whole  tract  of  land  in  question,  there  is  no  error  in  such 
judgment  of  which  he  can  take  advantage. 

In  the  case  of  Jenkins  vs.  Hurfs  Commissioners,  2  Rand.,  446, 
decided  May  22,  1824,  it  was  held :  In  a  joint  action  upon  con- 
tract the  plaintiff  must  have  judgment  against  all  the  defendants 
before  the  court,  or  he  can  have  judgment  against  none. 

In  the  case  of  Peasley  vs.  Boahoright,  2  Leigh,  195,  decided 
June,  1830.  In  joint  action  of  debt  against  two,  there  is  judg- 
ment by  default  against  one;  the  other  pleads  to  the  action, 
and  there  is  trial,  and  verdict  against  him.  Held :  There  should 
be  one  and  the  same  joint  judgment  against  both. 

In  the  case  of  Early  vs.  Clarksons  Administraior,  7  Leigh, 
83,  decided  January,  1836,  it  was  held :  Upon  a  scire  facias  to 
revive  a  judgment  against  two  persons  jointly,  and  in  all  joint 
actions  against  two  persons  on  a  joint  contract,  it  is  error 
to  enter  final  judgment  against  one  until  the  plaintiff  has  ma- 
tured the  case  against  the  other  also,  so  that  a  joint  judgment 
may  be  entered  against  both,  or  has  proceeded  against  the  other 
as  far  as  the  law  authorizes,  or  enables  him  to  proceed. 

See  the  case  of  Bush  vs.  Campbell,  26  Grat.,  403,  cited  a7ite, 
Section  3395. 

The  reference  to  27  Grat.,  252  and  257,  is  to  the  case  cited 
stipra,  Section  3395. 

In  the  case  of  Beazley's  Administrators  vs.  Sim^  {Adminis- 
trator), 81  Va.,  644,  decided  April  15,  1886,  it  was  held:  In  an 
action  ex  contractu  against  several  defendants,  the  common  law 
rule  was  that  all  should  be  summoned  actually,  or  construc- 
tively, by  prosecution  to  outlawry,  before  judgment  could  be 
had  against  any.  Code  changes  this  for  another  rule,  whereby 
judgment  may  be  had  against  one  defendant  served  with  pro- 
cess, and  a  discontinuance  as  to  the  others,  or  at  the  plain- 
tiff's election,  subsequent  service  of  process,  judgment  in  the 
same  suit  against  the  other  defendants. 

In  the  case  of  Corhin  vs.  Planters  National  Bank,  87  Va., 
661,  decided  April  26,  1891,  it  was  held :  The  discontinuance 
provided  for  by  this  section  is  a  discontinuance  as  against  any  one 
or  more  defendants  upon  whom  process  has  not  been  served. 

In  the  case  of  Dillard  et  als.  vs.  Turner  s  Administrator,  87 
Va.,  669,  decided  April  16,  1891,  it  was  held:  Action  against 
seven.  Summons  returned  executed  as  to  four,  and  "  no  inhabi- 
tants" as  to  two,  and  as  to  the  other,  "  I  understand  he  is  dead." 
At  the  rules  the  six  plead  in  abatement  for  misjoinder  of  surviv- 
ing with  dead  obligor,  and  clerk  abated  action  as  to  those  re- 
turned "  no  inhabitants,"  and  the  "  dead  "  one.     The  court,  how- 


810  Citations  to  the  Code  op  Virginia. 

ever,  rejected  the  plea  and  entered  judgment  against  the  four 
who  had  been  summoned.     Held :  No  error. 

CHAPTER    CLXVII. 

Section  3397. 

In  the  case  of  Hess  vs.  Rader  et  ux.,  26  Grat.,  746,  decided 
October  12,  1875.  "VV.  is  appointed  a  commissioner  to  sell  lands 
at  public  auction,  but  he  is  not  to  act  under  the  decree  until  he 
gives  bond,  etc.,  faithfully  to  perform  this  and  any  future  decrees 
made  in  the  cause.  He  does  not  execute  the  bond,  but  he  sells 
the  land  at  private  sale  to  H.,  which  he  reports  to  the  court. 
The  court  confirms  the  sale,  and  directs  him  to  collect  the  money 
and  invest  it ;  and  H.  pays  him  the  whole  purchase-money ; 
only  part  of  which  he  invests,  and  dies  insolvent.  Held :  The 
sale  having  been  made  by  a  commissioner  under  a  decree  of  the 
court,  and  that  sale  having  been  confirmed  by  the  court,  it  is  a 
judicial  sale,  whether  made  at  public  or  private  sale ;  it  only  be- 
comes a  sale  at  all  when  confirmed  by  the  court,  that  constitutes 
such  sale  a  judicial  sale. 

W.  not  having  given  the  bond  as  required,  had  no  authority 
to  receive  the  purchase-money,  and  H.  is  responsible  to  the 
party  who  is  entitled  to  the  proceeds,  for  so  much  as  has  not 
been  properly  invested  by  W.,  and  cannot  be  made  out  of  W.'s 
estate. 

The  statute  is  imperative  that  a  bond  shall  be  given,  and  it  is 
the  duty  of  a  purchaser  at  a  judicial  sale  to  see  that  the  bond 
has  been  given  before  he  pays  his  money  to  the  commissioner, 
or  he  does  it  at  his  own  risk. 

In  the  case  of  Lloyd  vs.  Erwiris  Administrator,  29  Grat., 
598,  decided  November,  1877,  it  was  held:  A  purchaser  at  a 
judicial  sale  of  land  pays  the  purchase-money  to  the  com- 
missioner ;  but  the  commissioner  has  not  executed  the  bond 
required  by  the  decree,  or  the  bond  executed  by  him  is  dis- 
approved by  the  clerk.  The  purchaser  has  paid  in  his  own 
wrong,  and  the  land  is  liable  for  the  purchase-money  received 
by  the  commissioner  and  misappHed,  though  the  land  has  been 
conveyed  by  the  commissioner  to  the  purchaser,  as  the  decree 
directed  to  be  done  when  the  purchase-money  was  paid.  In 
such  a  case  the  parties  entitled  to  the  fund  are  not  bound  to 
proceed  against  the  commissioner  and  his  sureties  in  the  bond 
he  executed,  but  which  the  clerk  disapproved,  before  proceeding 
against  the  land  to  have  it  subjected  to  the  payment  of  the  pur- 
chase-money misapplied  by  the  commissioner. 

In  the  case  of  Tyler  vs.  Toms  et  als.,  75  Va.,  116,  decided 
December  17,  1880.  "Where  two  commissioners  are  appointed 
to  sell  land,  and  they  are  required  before  proceeding  to  act  to- 


Citations  to  the  Code  of  Virginia.  811 

execute  a  bond  with  security  conditioned  according  to  law,  each 
executes  a  separate  bond  with  the  other  as  his  surety.  Held : 
This  is  not  a  compliance  with  the  decree,  and  that  though  the 
bonds  were  given  in  court.  The  sale  on  the  land  is  to  be  on 
the  credit,  and  the  bonds  to  be  taken  for  the  several  deferred 
payments,  and  the  title  to  be  retained.  The  sale  is  made,  the 
bonds  taken,  and  the  sale  reported  to  the  court ;  but  there  does 
not  appear  to  have  been  a  decree  confirming  the  sale.  As  the 
bonds  fall  due  the  purchaser  pays  the  money  to  one  of  the  com- 
missioners, and  he  deposits  it  as  collected  in  a  bank  to  his  credit 
as  commissioner,  not  using  it  or  mingling  it  with  his  own,  but 
it  is  lost  by  the  failure  of  the  bank.     Held  : 

1.  The  purchaser  is  bound  to  pay  the  purchase-money  of  the 
land  again. 

2.  The  commissioner  having  received  the  money  without  au- 
thority to  receive  it,  is  liable  to  the  purchaser  for  the  amount 
so  paid. 

3.  The  commissioner  may  be  proceeded  against  by  rule  in 
the  cause,  and  an  execution  of  ;?en*  facias  may  be  sued  out 
against  him  for  the  money. 

In  the  case  of  Hurt  vs.  Jones  and  Wife,  75  Va.,  341,  decided 
March  10,  1881.  A  purchaser  of  land  under  a  decree  of  a  court 
of  equity,  after  the  sale  is  confirmed,  is  the  equitable  owner  of 
the  land,  subject  to  be  compelled  to  comply  with  his  contract 
by  payment  of  the  purchase-money.  When  such  a  purchaser 
fails  to  comply  witli  his  contract,  and  a  court  directs  a  resale  of 
the  land,  it  is  resold  as  the  land  of  the  purchaser  and  at  his 
risk.  If,  on  such  resale,  it  does  not  bring  enough  to  discharge 
the  unpaid  purchase-money  of  the  former  sale,  and  the  cost  and 
expenses  of  the  resale,  he  is  liable  for  the  deficiency.  If  it 
brings  more  than  enough  for  these  purposes  he  is  entitled  to 
the  surplus. 

Under  a  decree  in  a  suit  for  partition,  M.  bought  the  land  for 
seven  thousand  dollars,  and  the  sale  was  confirmed.  He  paid 
no  part  of  the  purchase-money,  but  went  into  bankruptcy, 
giving  in  the  land  as  part  of  the  assets  and  the  debt  of  seven 
thousand  dollars  as  one  of  his  liabilities.  Subsequently  M.  and 
his  assignee  in  bankiuptcy,  with  the  sanction  of  the  bankrupt 
court,  conveyed  their  interest  in  the  land  to  H.,  on  the  consid- 
eration that  H.  should  pay  to  the  parties  entitled  the  said 
seven  thousand  dollars,  and  this  H.  does.  Held:  H.  has  a 
valid  equitable  title  to  the  land. 

Upon  the  failure  of  M.  to  pay  the  purchase-money,  there  was 
a  decree  appointing  H.  a  commissioner  to  resell  the  land,  and 
whilst  such  commissioner  he  made  the  arrangement  with  M. 
and  his  assignee  in  the  bankruptcy,  and  he  paid  all  the  other  par- 
ceners their  shares  of  the  seven  thousand  dollars,  retaining  the 


■812  Citations  to  the  Code  of  Vikginia. 

one-sixth  to  which  his  wife  was  entitled,  and  they  conveyed  all 
their  rights  and  interests  in  the  land  to  H. ;  and  this  was  re- 
ported to  the  court,  was  approved  and  confirmed,  and  H.  was 
authorized  to  retain  his  wife's  share  of  the  money.  The  wife  of 
H.  afterwards  died,  never  having  given  birth  to  a  child,  and  L., 
her  sister,  was  her  heir.     Held : 

1.  That  the  fact  that  H.  was  a  commissioner  to  sell  the  land 
■did  not  avoid  his  purchase  from  M. ;  and  the  parties  having  all 
that  they  were  entitled  to  claim,  cannot  object  to  it. 

2.  The  court  in  the  partition  suit  having  confirmed  what  was 
done,  that  cannot  be  called  in  question  in  another  suit. 

3.  The  one-sixth  interest  of  the  wife  of  H.  passed  by  the  sale 
in  the  suit  for  partition;  and  her  interest,  therefore,  was  her 
share  of  the  purchase-money  retained  by  H.  under  the  decree 
of  the  court. 

4.  The  bill  by  L.  being  purely  for  partition  of  the  land,  not 
noticing  the  suit  in  which  the  land  had  been  sold,  and  the  court 
holding  that  L.  has  no  title  to  the  land,  she  is  not  entitled  under 
the  prayer  to  have  general  relief  to  have  a  decree  against  H.  for 
the  money,  even  if  L.  is  entitled  to  it ;  nor  is  it  a  case  in  which 
the  plaintiff  will  be  permitted  to  file  an  amended  and  supple- 
mental bill  to  recover  the  money ;  but  this  biU  wiU  be  dismissed 
without  prejudice. 

The  reference  to  75  Va.,  815-833-'34,  is  an  error. 
In  the  case  of  Lee  vs.  Swepsoji,  76  Va.,  173  and  178 : 

1.  Commissioner  of  Sales. — The  bond  with  security  required 
of  him  is  for  the  benefit  of  those  entitled  to  the  proceeds.  If 
he  collects  without  giving  bond,  and  they  ratify  his  act  and 
look  to  him  for  payment,  no  one  else  can  complain  or  claim 
that  any  equity  is  raised  in  his  favor. 

2.  Idem. — Subrogation. — If  purchaser  should  have  to  pay  a 
second  time,  he  would  be  substituted  to  the  creditor's  rights 
under  a  decree  requiring  the  commissioner  to  pay  them. 

Idem. — Lien  of  Decree. — Case  at  Bar. — Commissioner  made 
sale  under  decree,  and  received  one-third  of  purchase-money 
without  giving  bond  as  required ;  sale  reported  and  confirmed, 
and  decree  entered  directing  him,  out  of  funds  reported  in  his 
hands,  to  pay  certain  creditors  therein  mentioned,  which  he 
failed  to  do.  The  decree  was  docketed,  and  five  days  later  he 
oonveyed  in  trust  his  own  real  estate  to  secure  his  creditor, 
L.  On  bill  by  creditors  in  the  decree  mentioned  to  enforce  it 
Against  that  real  estate,  he  having  become  insolvent,  held : 

1.  The  decree  against  commissioner  had  effect  of  a  judgment, 
And  being  docketed,  L.  was  aiffected  with  notice  of  same,  though 
purchaser  paid  commissioner  in  his  own  wrong. 

2.  L.  has  no  claim  to  be  subrogated  to  the  rights  of  the  cred- 
itors against  the  purchaser,  ha-\dng  no  equity  superior  to  that  of 
the  latter. 


Citations  to  the  Code  of  Virginia.  813^ 

In  the  case  of  McAlUstei'  vs.  Bodkin  et  als.,  76  Va.,  809  and 
815.  The  statute  requires  a  bond  of  commissioners  of  sale,  and 
it  must  be  given  before  they  receive  any  money  under  the 
decree,  whether  it  be  therein  directed  or  not. 

In  the  case  of  Stimpson  vs.  Bishop,  82  Va.,  190,  decided  July 
1,  1886,  it  was  held :  In  judicial  sales  of  property  embraced  in 
deeds  of  trust  and  other  instruments,  where  the  terms  of  sale 
are  agreed  on,  the  contract  governs,  and  the  court  hath  no  dis- 
cretion as  to  terms. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  593. 

In  the  case  of  Whitehead  vs.  Bradley  et  als.,  87  Va.,  676,  de- 
cided April  23, 1891, it  was  held:  Where  purchaser  at  sale  made 
under  decree  of  court  pays  the  purchase-money  to  sale-commis- 
sioner, who  has  not  given  the  bond  required  by  law,  such  pay- 
ment is  invalid,  unless  certificate  of  clerk  that  such  bond  has 
been  given  was  published  with  advertisement  of  sale. 

In  the  case  of  Bolerts  vs.  BohertSy  13  Grat.,  639,  decided  Feb- 
ruary 3,  1857,  it  was  held :  A  sale  of  a  tract  of  land  made  by  a 
commissioner  under  a  decree  of  the  chancery  court  on  day  so 
inclement  that  persons  intending  to  be  present  and  to  bid  for  a 
part  of  the  land  are  deterred  from  attending,  and  where  there 
was  but  one  bidder  present,  who  lived  at  the  place,  will  be  set 
aside  without  weighing  the  evidence,  which  is  conflicting,  as  to 
the  sufficiency  of  the  price  at  which  it  was  sold. 

According  to  the  practice  in  Virginia,  upon  objection  to  a  sale 
of  land  made  by  a  commissioner  it  is  not  necessary  to  ask  that 
the  biddings  may  be  opened  by  the  offer  of  a  substantial  advance 
upon  the  price  reported ;  but  the  court  will  consider  the  objec- 
tions to  the  sale,  and  confirm  or  set  it  aside  as  the  merits  of 
the  case  may  require. 

In  the  case  of  Bffinger  vs.  Balston  et  als.,  21  Grat.,  430,  de- 
cided August,  1871,  R.  sold  land  to  E.  and  retained  the 
vendor's  lien.  E.  sold  parts  of  the  land  to  F.  and  Q.  E.  not 
paying  R.,  R.  filed  a  bill  against  E.,  F.,  and  Q.,  to  enforce  the 
lien.  The  court  decrees  a  sale  of  that  in  possession  of  E.  first, 
and,  if  that  is  not  sufficient,  then  of  that  bought  by  F.  and  Q. 
The  sale  is  made  and  F.  and  Q.  buy  the  parts  they  had  before 
bought  of  E.  at  less  than  they  were  to  give  E.  The  commis- 
sioner reports  the  sales  good.  E.  objects  to  the  confirmation  of 
the  sale,  on  the  ground  of  the  inadequacy  of  price,  but  he  does 
not  move  to  open  the  biddings,  or  offer  an  advance.  Held: 
There  was  no  error  as  to  R.  in  directing  the  sale  of  the  parts  by 
F.  and  Q.  instead  of  confirming  the  sale  of  E.  to  them,  especi- 
ally as  Q.  alleged  that  E.  had  defrauded  him,  and  he  did  not 
intend  to  pay  him.  It  E.  objected  to  the  sale  for  inadequacy 
of  price  he  should  have  moved  the  court  to  open  the  biddings 
and  have  offered  an  advance  on  the  price  bid ;  this  objection  to 


814  Citations  to  the  Code  of  Virginia, 

the  confirmation  of  the  sale  without  more  was  no  ground  for  re- 
fusing to  confirm  it. 

In  the  case  of  Iludgins  vs.  Lanier,  Bro.  &  Co.,  23  Grat.,  494, 
decided  June,  1873.  Judgments  are  recovered  against  H.  and 
docketed.  He  afterwards  makes  a  deed,  in  which  his  wife  joins, 
conveying  certain  real  estate  to  T.,  in  trust  to  sell  upon  demand 
of  a  majority  of  his  creditors  and  pay  his  debts  ratably;  but  if 
any  have  obtained  liens,  they  to  be  first  paid.  He,  at  the  same 
time,  conveys  to  T.  other  real  estate,  in  trust  for  the  separate 
use  of  his  wife,  stated  upon  the  express  consideration  of  exe- 
cuting the  deed.  The  judgment  does  not  name  any  creditor  or 
enumerate  the  debts.  L.,  one  of  the  judgment  creditors,  files  a 
bill  to  enforce  the  payment  of  his  debt.  He  says  he  does  not 
mean  to  give  up  any  right  he  has,  but  is  willing  to  proceed  first 
against  the  land  conveyed  in  the  deed.  He  makes  H.,  T,,  and 
the  judgment- creditors  defendants,  and  the  bill  is  taken  for  con- 
fessed as  to  all  the  defendants.  A  commissioner  states  the 
debts  of  the  judgment-creditors,  and  there  is  no  exception  to 
the  report,  and  there  is  a  decree  appointing  commissioners  to 
sell  the  land  conveyed  in  the  deed  at  auction,  but  with  the  con- 
sent of  H.  there  may  be  a  private  sale.  H.  negotiates  with  R. 
for  a  sale  of  a  part  of  the  property  at  $4,500  which  he  proposes 
to  the  commissioners,  and  they  are  disposed  to  accept  the  offer, 
but  before  it  is  closed  M.  offers  $5,000,  and  then  H.  protests 
against  the  sale  to  M.,  and  insists  that  it  shall  be  sold  at  auction, 
but  El.  declining  to  give  more,  the  commissioners  accept  the 
offer  of  M.,  and  H.  excepts  to  the  reports.  H.  then  files  his 
answer,  insisting  that  T.  shall  elect  Avhether  he  will  proceed 
under  his  judgment-hen  or  under  the  deed,  and  insists  that 
under  the  deed  only  a  majority  of  the  creditors  could  direct  a 
sale.  And  he  files  a  petition  saying  that  E.  had  offered  $5,100 
for  the  property,  and  proposing  to  give  bond  and  security,  that 
if  accepted  the  offer  will  be  complied  with  in  five  days  after  the 
rising  of  the  court.  Held :  The  deed  not  naming  the  creditors, 
the  only  mode  of  proceeding  open  to  them  was  by  bill  in  equity, 
where  the  necessary  parties  might  be  convened,  their  rights  and 
liabihties  ascertained  and  adjusted,  and  the  trust  enforced  under 
the  supervision  of  the  court.  There  having  been  no  objection 
for  want  of  proper  parties,  the  want  of  such  parties  is  no  objec- 
tion to  the  proceeding. 

If  there  were  other  creditors  besides  those  named  in  the  bill 
they  could  have  asserted  their  claims  before  the  commissioner. 

The  creditors  before  the  court  made  no  objection  to  a  sale 
under  the  deed,  and  as  the  bill  was  taken  for  confessed  as  to 
them,  it  is  to  be  presumed  that  they  desired  the  sale.  If  they 
did  not  constitute  a  majority  of  the  creditors,  it  was  for  H.  to 
show  it.     He  alone  knew  their  names  or  numbers. 


Citations  to  the  Code  of  Yibginia.  815 

H.  having  consented  to  a  private  sale  by  the  commissioners 
to  R.  at  a  certain  price,  and  the  commissioners  having  sold  to 
M.  at  a  higher  price,  he  could  not  withdraw  his  consent  to  a 
private  sale  so  as  to  set  aside  a  sale  as  made,  as  not  made  in 
pursuance  of  the  decree. 

It  is  no  just  cause  for  vacating  a  judicial  sale,  that  only  a  few 
bidders  were  present.  The  only  inquiry  for  the  court  is  whether 
the  terms  for  the  decree  have  been  pursued,  and  the  property 
sold  at  an  adequate  price. 

The  advance  of  one  hundred  dollars  upon  the  price  paid  for 
the  property  is  no  such  substantial  and  material  advance  upon 
the  price  obtained  by  the  commissioners  as  would  justify  the 
court  in  annulling  the  sale  and  in  ordering  a  new  sale. 

In  the  case  of  Brock  vs.  Rice  et  als.,  27  Grat.,  812,  decided 
September,  1876,  it  was  held :  Whether  the  court  will  confirm 
a  sale  made  by  commissioners  under  its  decree  must,  in  a  great 
measure,  depend  upon  the  circumstances  in  each  case.  It  is 
difficult  to  lay  down  any  rule  applicable  to  all  cases,  nor  is  it 
possible  to  specify  all  the  grounds  which  will  justify  the  court 
in  withholding  its  approval.  In  a  case  where  there  is  reason 
to  believe  that  fraud  or  mistake  has  been  committed,  to  the 
detriment  of  the  owner  or  the  purchaser,  or  that  the  officer 
conducting  the  sale  has  been  guilty  of  any  wrong  or  breach  of 
duty,  to  the  injury  of  the  parties  interested,  the  court  will  with- 
hold a  confirmation  of  the  sale.  In  such  a  case  either  party 
may  object  to  the  report  of  the  commissioner;  and  the  pur- 
chaser himself,  who  becomes  a  party  to  the  sale,  may  appear 
before  the  court  and  have  any  error  corrected. 

The  court,  in  acting  upon  a  report  of  sale,  does  not  exercise 
an  arbitrary,  but  a  sound  legal,  discretion,  in  the  interests  of 
fairness  and  prudence,  and  with  a  just  regard  to  the  rights  of 
all  concerned. 

An  auctioneer  or  crier  making  a  sale  cannot  properly  act  for 
himself  or  for  any  other  person  in  bidding  for  the  property. 

In  the  case  of  Curtis  vs.  Thompson^  29  Grat.,  474,  decided 
November,  1877.  A  tract  of  land  was  fairly  sold  by  commis- 
sioners, pursuant  to  a  decree  of  court,  to  a  purchaser  for  $27.50 
per  acre,  subject  to  a  contingent  right  of  dower.  The  tract  was 
assessed  in  1870  at  thirty  dollars,  and  thirty  dollars  per  acre 
was  the  value  fixed  upon  the  land  by  a  commissioner  of  the 
court,  whose  report  in  the  cause  had  been  confirmed  without 
exception,  in  which  valuation  no  allowance  was  made  for  the 
contingent  right  of  dower.  The  owner  of  the  land  objected  to  a 
confirmation  of  the  sale,  on  the  ground  of  inadequacy  of  price, 
and  affidavits  touching  the  value  of  the  land  were  filed  by  both 
parties.  The  court  below  set  aside  the  sale  and  ordered  a  re- 
sale, whereat  the  same  party  became  the  purchaser  at  the  same 


816  Citations  to  the  Code  op  Yirginia. 

price.  In  the  meanwhile  the  assessment  of  the  land  had  been 
reduced  to  twenty  dollars  per  acre.  The  owner  of  the  land 
again  objected  to  a  confirmation  of  the  sale,  on  the  same  grounds 
as  before,  and  the  court  again  refused  to  confirm  the  sale,  and 
again  ordered  a  resale.  Held :  The  first  sale  should  have  been 
confirmed,  and  the  decree  setting  it  aside  and  all  the  subse- 
quent proceedings  were  erroneous. 

In  the  case  of  Roxidabush  vs.  Miller  et  als.,  32  Grat.,  454,  de- 
cided November,  1879,  it  was  held :  The  English  practice  of,  as 
a  matter  of  course,  reopening  the  biddings  of  a  sale  made  by 
the  master  under  a  decree  of  the  court,  upon  the  offer  of  a  rea- 
sonable advance  bid,  has  not  been  adopted  in  Yirginia.  Whe- 
ther the  court  will  reopen  the  bids  after  such  a  sale  is  a  ques- 
tion addressed  to  the  sound  discretion  of  the  court,  subject  to 
the  review  of  the  appellate  tribunal,  and  the  propriety  of  its  ex- 
ercise depends  upon  the  circumstances  of  each  case,  and  it  can 
be  exercised  only  when  it  can  be  done  with  a  due  regard  for 
the  rights  and  interests  of  all  concerned,  the  purchaser  as  well 
as  all  others.  When  a  sale  has  been  fairly  made,  and  for  a  fair 
price,  it  should  never  be  set  aside  when  there  is  a  good  reason 
to  believe  that  the  upset  price  has  been  offered  to  gratify  ill- 
will  towards  the  purchaser. 

In  the  case  of  Merchants  Bank  of  Baltimore  et  als.  vs.  Camp- 
hell  et  als.,  75  Va.,  455,  decided  April  21,  1881.  In  a  creditor's 
suit  there  is  a  sale  of  a  tract  of  land,  and  the  sale  is  confirmed 
by  the  court ;  but  before  the  purchase-money  is  paid  creditors 
apply  by  petition  to  set  aside  the  order  confirming  the  sale,  on 
the  ground  of  the  fraudulent  concealment  by  the  purchasers  of 
a  cave  under  it,  which  gives  great  value  to  the  tract.     Held : 

1.  In  a  judicial  sale,  if  it  should  be  made  to  appear,  either 
before  or  after  the  sale  has  been  ratified,  that  there  has  been 
an  injurious  mistake,  misrepresentation,  or  fraud,  the  biddings 
will  be  reopened  and  the  reported  sale  rejected,  or  the  order  of 
ratification  will  be  rescinded,  and  the  property  again  sent  into 
the  market  and  resold. 

2.  On  the  evidence  in  this  case,  the  purchasers,  having  dis- 
covered the  cave,  used  means  to  conceal  it,  and  made  false  re- 
presentations in  relation  to  it;  and  upon  this  ground  the  order 
confirming  the  sale  should  be  set  aside. 

In  the  case  of  Berlin  vs.  Melhorn,  75  Va.,  639,  decided  Sep- 
tember, 1881,  it  was  held,  p.  642 :  After  a  judicial  sale  has  been 
confirmed  by  the  court  which  ordered  it,  it  will  not  be  set  aside 
except  for  fraud,  mistake,  surprise,  or  other  cause  for  which 
equity  would  give  relief  if  the  sale  had  been  made  by  the  par- 
ties in  interest  instead  of  by  the  court.  Where  the  objection  is 
to  the  confirmation,  the  rule  is  more  liberal  as  to  the  principles 
applicable  to  such  a  case. 


Citations  to  the  Code  of  Virginia.  817 

In  the  case  of  Hansucker  vs.  Walked',  76  Va.,  753.  The  court 
is  of  opinion  that  the  sale  of  the  land  in  the  bill  and  proceed- 
ings mentioned  ought  to  be  set  aside  and  a  resale  ordered.  The 
commissioners,  in  their  report  of  the  sale,  say  that  the  sale  is 
believed  to  be  much  below  its  value.  The  commissioner  in 
chancery,  to  whom  the  matter  of  taking  the  accounts  was  re- 
ferred, reports  the  land  as  worth  $4.50  more  per  acre  than  the 
price  for  which  it  was  sold,  making  a  difference  of  more  than 
eight  hundred  dollars.  In  an  aflfidavit  given  by  three  of  the  ad- 
joining land-holders  it  is  stated  that  the  land  is  worth  $32.50 
per  acre,  which  is  twelve  dollars  per  acre  in  excess  of  the  price 
it  commanded  at  the  commissioners'  sale.  It  seems,  also,  that 
an  upset  bid  of  ten  per  cent,  was  made  by  a  responsible  party 
with  good  and  sufficient  security.  Against  these  facts  there  is 
not  a  scintilla  of  opposing  testimony.  It  does  not  appear  that 
the  purchaser  at  the  sale  insisted  on  its  confirmation.  So  far 
"as  the  record  discloses,  he  was  not  represented  by  counsel  in 
the  court  below,  nor  is  he  here  insisting  on  the  affirmance  of 
the  decree. 

In  the  case  of  Langyher  ( Trustee)  vs.  Patterson  cfe  Bash,  77 
Va.,  470,  decided  May  3,  1883.  Where  such  sale  has  been  con- 
firmed by  the  court,  it  cannot  be  set  aside  except  upon  petition 
or  motion,  after  proper  notice  to  parties  interested  and  for  good 
cause  shown. 

Commissioner  empowered  to  sell  mill  property  for  one-fourth 
cash  and  the  balance  in  one,  two,  and  three  years,  reported  sale 
of  same  to  L.  at  $1,000,  receiving  in  cash  $56.50,  and  the  pur- 
chaser's notes  for  balance,  payable  in  three  equal  annual  instal- 
ments, and  that  he  found  it  impossible  to  sell  at  any  advantage 
on  terms  of  decree.  No  exception.  On  hearing,  sale  confirmed. 
During  same  term,  two  years  later,  upset  bid  of  10  per  cent, 
offered.  No  money  or  security  tendered,  no  affidavit  or  sugges- 
tion that  the  price  was  inadequate.  Without  notice  to  pur- 
chaser who  had  left  court,  decree  was  entered  rescinding  confir- 
mation, ordering  the  property  to  be  set  up  on  the  terms  ordered, 
and  started  at  $1,100.  On  appeal,  held:  The  decree  of  recis- 
sion  of  confirmation  of  the  sale  was  erroneous. 

Subsequent  confirmation  is  equivalent  to  previous  authority, 
cures  departures  from  the  terms  prescribed,  and  supplies  all  de- 
fects in  the  execution  of  the  decree,  except  those  founded  in 
lack  of  jurisdiction.  It  makes  the  sale  the  court's  own  act  and 
renders  it  no  longer  executory,  but  executed.  Public  policy  re- 
quires that  purchasers  at  such  sales  should  be  entitled  to  cer- 
tainty and  security  of  their  rights  under  their  purchases,  and 
they  should  not  be  refused  confirmation  simply  because  they 
may  have  got  a  good  bargain. 

In  the  case  of  Ejfinger  vs.  Kenney  {Trustee)^  79  Va.,  651,  de- 

52 


818  Citations  to  the  Code  op  Virginia. 

cided  November  20,  1884,  it  was  held :  It  is  a  settled  rule  that 
in  suits  to  sell  real  estate  to  satisfy  liens  by  judgments  or  deeds 
of  trust  it  is  premature  and  erroneous  to  decree  sale  before  ac- 
count is  taken  of  liens  and  their  priorities. 

In  the  case  of  Terry  vs.  Coles  {Executor)  et  als.,  80  Va.,  695, 
decided  September  24,  1885,  it  was  held :  Sale  made  by  an 
order  of  a  court  of  competent  jurisdiction  pendente  lite  is  a  judi- 
cial sale.  An  executioner  having  authority  under  the  will  to 
sell  land  declines  to  exercise  his  authority,  but  applies  to  the 
court  for  instructions  and  directions,  and  is  ordered  to  make  sale 
and  report  it  to  the  court  for  confirmation,  whereupon  he  makes 
and  reports  the  sale  to  the  court  as  ordered,  such  sale  is  a  judi- 
cial sale. 

Bidder  acquires  no  rights  until  his  bid  is  accepted  and  the 
sale  confirmed  by  the  court.  Whether  the  sale  will  be  con- 
firmed depends  on  the  circumstances  of  each  case  and  the  sound 
discretion  of  the  court  in  view  of  fairness,  prudence,  and  the' 
rights  of  all  concerned.  No  general  rules  will  apply  to  all  the 
cases. 

Where  sale  of  land  is  decreed  to  pay  specific  legacies,  and  the 
residue  to  four  residuary  legatees,  and  the  land  is  bid  in  by  one 
of  those  legatees,  and  the  other  legatees  opposed  the  acceptance 
of  the  bid  and  the  confirmation  of  the  sale,  and  show  by  nu- 
merous witnesses  well  acquainted  with  the  land  that  though  the 
sale  was  open  and  fair,  yet  the  price  bid  was  grossly  inadequate, 
and  that  the  land,  if  divided  and  sold  in  parcels,  would,  on  the 
usual  terms  of  payments  in  such  cases,  bring  two  or  three  times 
the  price  bid,  there  was  no  error  in  the  court  rejecting  the  bid, 
and  refusing  to  confirm  the  sale  and  directing  a  resale. 

In  the  case  of  Yost  vs.  Potter  et  als.,  80  Va.,  855,  decided 
October  8,  1885,  it  was  held :  Sale  for  purchase-money  will  not 
be  decreed  where  the  property  remains  encumbered  for  pur- 
chase-money due  from  plaintiff,  without  providing  for  discharge  of 
such  encumbrance.  Terms  of  the  sale  are  within  court's  discre- 
tion, and  no  complaint  against  them  will  be  heard  without  evi- 
dence that  the  price  would  have  been  better  had  the  terms  been 
more  liberal. 

Where  after-sale  fairly  made  for  adequate  price  has  been 
confirmed,  an  upset  bid  is  offered,  and  the  sale  is  set  aside  upon 
condition  that  the  said  bid  be  made  after  a  ceitain  time,  when 
the  resale  should  take  place  upon  terms  which  would  not  extend 
the  deferred  payments  beyond  the  time  at  which  the  bonds 
taken  at  the  previous  sale  were  to  become  due,  and  no  complaints 
of  said  terms  were  made  below,  and  no  proof  offered  that  upset- 
bidder  could  have  compHed  with  his  bid  had  the  terms  been 
more  liberal,  there  is  no  ground  on  this  account  for  complaint 
in  the  appellate  court. 


Citations  to  the  Code  of  Virginia.  819 

In  the  case  of  Clarkson  vs.  Reade,  15  Grat.,  288,  decided  July, 
1859,  it  was  held :  A  judicial  sale  of  land  is  partly  on  a  credit, 
and  the  purchaser  pays  the  cash  payment  and  executes  his  bonds 
•with  security  for  the  deferred  payments,  and  the  sale  is  con- 
firmed by  the  court.  'V\Tien  the  bonds  become  due,  the  pur- 
chaser fails  to  pay  them.  He  may  be  proceeded  against  by  a 
rule  made  upon  him  to  show  cause  why  the  land  shall  not  be 
sold  for  the  payment  of  the  purchase-money,  and  upon  that 
proceeding  a  decree  may  be  made  for  a  sale  of  the  land. 

In  the  case  of  Long  et  als.  vs.  Weller's  Executors  et  als.,  29 
Grat.,  347,  decided  November,  1877,  it  was  held:  An  objection 
to  the  title  of  land  by  a  purchaser  at  a  judicial  sale  must  be 
made  before  the  sale  is  confirmed  by  the  court.  Ordinarily  an 
objection  after  confirmation  comes  too  late. 

The  title  to  an  easement  on  the  land  to  which  it  is  appurtenant, 
is  necessarily  connected  with  the  title  to  the  land,  and  an  objection 
referring  to  such  easement  must  be  governed  by  the  same  rules. 

An  objection  by  such  a  purchaser  after  the  sale  has  been 
confirmed,  that  owing  to  his  misinformation  as  to  the  bounda- 
ries of  the  land  he  does  not  get  certain  water  privileges  which 
he  would  have  had  if  he  had  been  rightly  informed  as  to  the 
said  boundaries,  can  only  be  sustained  on  the  grounds  of  fraud 
or  mistake,  and  if  mistake  is  relied  on,  it  must  be  the  mistake  of 
both  parties. 

An  objection  of  the  kind  should  be  made  to  the  court  as  soon 
as  it  is  discovered  by  the  purchaser. 

Where  a  judicial  sale  of  land  is  made  upon  a  credit,  and  the 
title  retained  as  security,  upon  a  rule  against  the  purchaser  to 
show  cause  why  the  land  should  be  resold  for  his  failure  to  pay 
the  purchase-money  before  making  a  decree  for  the  sale,  the 
court  should  ascertain  how  much  of  the  purchase-money  is 
due,  and  should  in  the  decree  give  him  a  day  in  which  to  pay 
it,  and  if  not  paid  in  that  time,  the  commissioner  is  to  sell. 

Whether  the  whole  or  any  part  of  the  land  should  be  sold,  or 
whether  as  a  whole,  or  in  parcels,  must  be  referred  to  the  dis- 
cretion of  the  court,  and  his  act  will  not  be  disturbed  unless 
plainly  erroneous. 

In  the  case  of  Thornton  vs.  Fairfax  et  als.,  29  Grat.,  669  and 
677-78,  decided  January,  1878.  In  a  suit  for  the  sale  of  land 
to  satisfy  liens  upon  it,  there  was  an  order  for  an  account  of  the 
hens  and  their  priorities,  and  in  1860  the  account  was  returned 
arranging  the  debts  in  twenty-four  classes,  of  which  the  second, 
third,  and  thirteenth  were  debts  reported  to  be  due  to  S.  In 
1866  the  report  was  confirmed  and  there  was  a  decree  for  the 
sale  of  the  land,  one-tenth  cash  and  the  balance  at  one  and  two 
years.  The  sale  was  made  to  J.  and  confirmed,  and  J.  directed 
to  pay  the  money  to  the  receiver.     In  1870  T.  filed  his  petition 


820  Citations  to  the  Code  of  Virginia. 

in  the  cause,  claiming  that  the  debts  mentioned  in  the  said 
second,  third,  and  thirteenth  classes  were  his,  acquired  in  1864, 
and  asking  that  the  receiver  might  be  required  to  show  how 
much  of  the  purchase-money  he  had  received  and  what  he  had 
done  with  it,  and  if  it  had  not  been  paid,  for  a  resale  of  the 
land.  The  case  was  referred  to  the  commissioner,  and  J.  ap- 
peared before  him,  claiming  that  said  debts  were  his,  and  con- 
testing the  claim  of  T.  S.  did  not  claim  them.  Held:  That  it 
was  competent  for  T.,  though  not  a  party  to  the  suit,  but  who 
had  acquired  subsequently  the  liens  of  one  who  was  a  party,  by 
petition  or  motion  to  require  a  report  from  the  receiver  show- 
ing the  amount  of  the  purchase-money  in  his  hands,  and  to 
have  it  applied  to  the  satisfaction  of  the  liens  according  to  their 
priorities,  and  to  direct  a  resale  of  the  land  for  the  balance  of 
the  purchase-money  due,  pursuant  to  the  decree  of  sale. 

It  was  necessary  that  he  should  have  proceeded  by  bill  for 
that  purpose,  or  to  have  made  the  purchaser  a  party  defendant 
to  his  petition,  or  to  have  required  him  to  answer. 

If  S.  had  disputed  the  claim  of  T.  then  it  would  have  been 
proper  for  T.  to  have  asserted  his  claim  by  supplemental  bill  or 
by  an  original  bill  in  the  nature  of  a  supplemental  bill. 

Before  there  could  be  a  decree  for  a  resale  of  the  property  it 
was  proper  and  necessary  that  the  purchaser  should  have  notice 
of  the  proceeding.  The  approved  practice  has  been  to  proceed 
by  the  service  of  a  rule  upon  the  purchaser,  to  show  cause  why 
the  lands  should  not  be  resold. 

Though  no  rule  was  served  on  the  purchaser  in  this  case,  he 
had  notice  of  the  proceeding  and  came  forward  to  show  cause 
in  his  own  chosen  way.  There  was  no  need  therefore  for  a 
rule. 

The  purchaser  might  have  moved  the  court  for  leave  to  answer 
the  petition  of  T.  or  he  might  have  filed  a  supplemental  bill  or 
an  original  bill  in  the  nature  of  a  supplemental  bill,  and  put 
the  matters  in  issue  on  which  he  relied. 

For  reference  to  75  Va.,  639  and  642,  see  supra,  this  Section. 

In  the  case  of  Boyce  vs.  Strother  et  als.,  76  Va.,  862  and  864. 
Where  the  purchaser  is  in  default  in  paying  the  purchase-money 
and  a  rule  is  awarded  requiring  him  to  show  cause  why  there 
should  not  be  a  resale  of  the  land,  the  objection  that  the  rule 
is  returnable  to  the  same  term  at  which  it  is  issued  is  without 
force,  provided  sufficient  time  is  given  to  answer  the  rule. 

In  the  case  of  Ogdeii  vs.  Davidson  et  als.,  81  Va,,  757,  decided 
December  10,  1885,  it  was  held:  Decree  is  merely  null  as  to 
persons  not  named  as  parties  in  the  bill,  and  against  whom  no 
allegations  are  made  and  no  relief  is  prayed. 

In  the  case  of  Thurman  et  als.  vs.  Morgan  {Receiver),  79  Va., 
367,  decided  August  14,  1884,  it  was  held :  Creditor  instead  of 


Citations  to  the  Code  of  Virginia.  821 

proceeding  at  common  law  to  recover  his  claim  obtains  an 
order  for  its  payment  on  a  summary  rule  to  show  cause.  This 
is  a  departure  from  the  established  modes  of  procedure,  and 
the  order  so  obtained  has  not  the  force  of  a  judgment,  but  is 
Toid  on  its  face. 

In  the  case  of  Anthony  \8.  Kasey,  83  Va,,  338,  decided  May  19, 
1887,  it  was  held:  When  purchaser  at  a  judicial  sale  fails  to 
pay  his  bonds,  and  upon  rule  against  him  and  his  surety  a 
personal  decree  is  rendered  against  the  surety,  such  decree  is 
extra  judicial  and  void. 

Section  3398. 

In  the  case  of  Eggleton  vs.  Dinsmore  c&  Kyle,  84  Va.,  858, 
decided  May  3, 1888.  A  commissioner  sold  land  under  a  decree 
and  received  the  price  without  giving  a  bond  or  accounting  for 
it.  Purchaser  had  to  pay  it  over,  and  the  land  was  resold  for 
that  purpose.  Commissioner  gave  a  trust  deed  to  indemnify 
the  purchaser.  In  creditor's  sale  trust  subject  was  sold.  Held: 
Purchaser  was  entitled  only  to  the  amount  he  paid,  with  interest 
and  costs  of  the  resale. 

In  the  case  of  N&wh&rry  vs.  Sheffey  {Commissioner),  89  Va., 
286,  decided  July  6,  1892,  it  was  held :  Under  Code,  Section 
3396,  judgment  on  a  forthcoming  bond  may  be  had  against  the 
sureties,  though  the  principal  has  never  been  served  with  notice 
of  the  motion. 

Section  3403. 

In  the  case  of  Moran  vs.  Johnston,  26  Grat.,  108,  decided 
April  1,  1875,  it  was  held:  After  a  decree  for  the  sale  of  real 
estate  to  satisfy  creditors  having  liens  thereon,  and  an  appeal 
from  that  decree  by  the  debtor,  the  court  below  in  which  the 
suit  was  pending  may  appoint  a  receiver  to  take  possession  of 
the  property  and  rent  it  out,  and  collect  the  rents  until  the 
further  order  of  the  court,  etc. 

If  the  sergeant  of  the  city  in  which  the  property  is  located,  is 
appointed  the  receiver,  it  is  not  necessary  to  require  him  to 
give  bond  for  the  faithful  performance  of  his  duty,  as  it  is 
covered  by  his  official  bond. 

Section  3405. 
In  the  case  of  Beverly  vs.  Brooke  et  als.,  4  Grat.,  187,  decided 
October,  1847,  it  was  held :  The  suit  in  which  the  receiver  was 
appointed,  embracing  other  matters  beside  the  trust-fund  which 
is  in  dispute,  all  these  matters  are  adjudicated  and  settled,  and 
the  disputed  subject  is  silently  dropped  in  that  suit,  and  the 
cause  sleeps,  or  is  finally  decided ;  but  the  controvei-sy  as  to  the 
disputed  subject  goes  on  in  the  other  suit,  and  the  receiver,  not 
having  been  formally  discharged,  continues  to  hold  the  disputed 
subject.     The  plaintiff  in  the  second  suit,  though  ho  was  not  a 


822  Citations  to  the  Code  of  Virginia. 

party  to  the  first,  having  succeeded  in  the  controversy,  is  enti- 
tled to  an  account  and  to  a  decree  against  the  receiver  in  his 
own  suit. 

In  the  case  of  Thoimton  vs.  The  Washington  Savings  Bank,  76 
Va.,  432. 

1.  Chancery  Practice. — Receiver. — An  order  appointing  a  re- 
ceiver is  in  the  nature  of  an  injunction  or  writ  of  sequestration, 
preventing  any  alienation  of,  or  interference  with,  the  property 
without  the  consent  of  the  court.  Any  meddling  with  the  con- 
trol or  possession  of  the  receiver,  whether  forcibly  or  by  legal 
proceedings,  without  the  permission  of  the  court,  is  contempt 
of  court,  and  is  punishable. 

In  the  case  of  Melendy  <&  Russell  vs.  Barbour  (Beceiver),  78 
Va.,  544,  decided  February  7,  1884,  it  was  held:  One  aggrieved 
by  the  decree  of  the  court  which  appointed  the  receiver  for  or 
against  whom  the  decree  is  rendered,  may  appeal,  in  a  proper 
case,  to  this  court,  even  if  the  receiver  cannot  question  the  de- 
cree of  the  court  appointing  him. 

The  established  rule  is,  that  when  a  railroad  company  is  in 
the  hands  of  a  receiver  appointed  by  a  court  of  equity,  the  re- 
ceiver cannot  be  sued  at  law  without  the  permission  of  the  ap- 
pointing court.  Such  receiver  may  be  held  responsible  for  the 
damage  actually  sustained  by  a  shipper  of  freight  through  the 
negligence  of  the  receiver's  agents  and  employees  in  any  case 
in  which  the  company  could  be  so  held. 

In  the  case  of  Barton  vs.  Barbour,  104  U.  S.  S.  C.  Reports, 
126,  decided  October,  1881,  it  was  held :  The  rule  that  a  receiver 
cannot  be  sued  without  leave  of  the  court  of  equity  which  ap- 
pointed him  applies  to  suits  against  him  on  a  money  demand,. 
or  for  damages,  as  well  as  to  those  the  object  of  which  is  to  re- 
cover property  which  he  holds  by  order  of  that  court.  The  fact 
that  by  such  order  he  is  in  possession  of  a  railroad,  and  is  en- 
gaged in  the  business  of  a  common  carrier  thereon,  does  not  so 
take  his  case  out  of  the  rule  as  that  an  action  will  lie  against 
him  for  an  injury  caused  by  his  negligence,  or  that  of  his  serv- 
ants, in  conducting  that  business.  If  the  adjudgment  of  a  de- 
mand against  him  involves  disputed  facts,  that  court  may,  in  a 
proper  case,  either  of  its  own  motion,  or  on  the  prayer  of  the 
parties  injured,  allow  him  to  be  sued  in  a  court  of  law,  or  may 
direct  the  trial  of  a  feigned  issue  to  settle  the  facts. 

The  determination  by  a  court  of  equity,  according  to  its  own, 
course  and  practice,  of  issues  of  fact  growing  out  of  the  admin- 
istration of  trust  property  in  its  possession,  does  not  impair  the 
constitutional  right  of  trial  by  jury. 

In  view  of  the  public  and  private  interests  involved,  a  court 
of  equity,  having  in  its  possession  for  administration  as  trust 
assets  a  railroad  or  other  property,  may  authorize  the  receiver 


CiTATTONS  TO  THE  CODE  OP  VIRGINIA.  823 

to  keep  it  in  repair,  and  to  manage  and  use  it  in  the  ordinary 
way,  until  it  can  be  sold  to  the  best  advantage  of  all  interested 
therein.  Without  leave  of  that  court,  a  court  of  another  State 
has,  under  such  circumstances,  no  jurisdiction  to  entertain  suits 
against  him  for  causes  of  action  arising  in  the  State  wherein  he 
was  appointed  and  wherein  the  property  is  situated,  which  are 
based  on  his  negligence,  or  that  of  his  servants,  in  the  perform- 
ance of  their  duty  in  respect  to  the  property. 

Section  3409. 

The  case  of  Walton  vs.  Williams,  here  quoted  as  "not  yet 
reported,"  has  never  been  reported. 

In  the  case  of  Carr's  Administrators  \s.  Morris,  85  Va.,  21, 
decided  May  10,  1888.  A  receiver  is  ordered  by  the  court  to 
lend  a  trust  fund  at  six  per  cent,  per  annum  interest  on  bond 
secured  by  trust  deed  on  real  estate,  payable  to  himself,  with  in- 
terest recoverable  by  suit  upon  default,  and  entire  debt  to  be 
payable  upon  two  successive  defaults  of  interest,  and  to  make  re- 
port of  his  actions.  He  lends  this  money  at  eight  per  cent,  per 
annum  on  notes  payable  to  another,  secured  by  trust  deed  on 
real  estate,  and  neglects  to  enforce  the  debt  upon  default  and  to 
report.  The  trust-money  is  lost.  Held :  The  receiver  is  charge- 
able with  the  loss,  though  no  bad  faith  is  shown. 

Section  3418. 

In  the  case  of  Farley  vs.  Shijypen,  Wythe  Chancery  Reports, 
254,  the  points  here  referred  to  are  not  considered. 

In  the  case  of  Guerrant  vs.  Foivler,  1  H.  &  M.,  5,  decided 
September  22,  1806,  it  was  held:  A  person  being  within  the 
Commonwealth  may  be  decreed  to  execute  a  conveyance  for 
lands  lying  in  another  State,  or  to  cancel  a  d'eed  for  such  lands 
obtained  by  fraud. 

In  the  case  of  Cockers  Adm^inistrator  vs.  Gilpin,  1  Rob.,  20 
and  45  (2d  edition,  22).  In  a  suit  by  one  partner  against  his 
co-partner  for  a  settlement  of  the  partnership  accounts,  and  for 
a  moiety  of  a  tract  of  land  purchased  by  the  defendant  in  his 
own  name,  and  paid  for  out  of  the  partnership  funds,  a  decree 
having  been  made  declaring  the  land  partnership  property,  and 
directing  a  settlement  of  the  accounts,  and  the  cause  afterwards 
coming  on  to  be  further  heard  upon  the  report  of  the  commis- 
sioner, the  court  decrees  that  the  plaintiff  pay  to  the  defendant 
a  sum  of  money  appearing  due  by  the  report,  and  that  the 
defendant  thereupon  convey  to  the  plaintiff  a  moiety  of  the 
land ;  but  if  the  plaintiff  shall  not,  within  six  months  from  the 
date  of  decree,  pay  the  said  money,  that  the  marshal  sell  the 
moiety  of  the  land,  and  out  of  the  proceeds  of  sale,  after  defray- 
ing the  expenses,  pay  to  the  defendant  the  money  so  decreed, 


824  Citations  to  the  Code  of  Virginia. 

and  the  residue,  if  any,  to  the  plaintiff.  And  the  court  further 
decrees  that  the  outstanding  debts  due  to  the  firm  be  equally 
divided  between  the  parties,  and  that  the  costs  of  the  suit  be 
equally  borne  by  them.  Held :  This  decree  is  interlocutory, 
and  it  may  be  reviewed  upon  an  appeal,  although  there  has 
been  such  lapse  of  time  between  the  rendition  of  the  decree 
and  the  appeal  as  would  preclude  its  being  reviewed  if  the  de- 
cree were  final. 

The  references  to  3  Grat.,  148  and  167,  and  to  8  Grat.,  351 
and  411,  are  errors. 

In  the  case  of  Barger  vs.  Buckland  et  als.,  28  Grat.,  850,  de- 
cided July,  1877,  it  was  held :  Pending  a  suit  by  judgment-cred- 
itors against  their  debtors  and  others  to  set  aside  a  deed  of 
trust  or  subject  the  surplus  to  payment  of  their  debts,  the 
debtor  is  declared  a  bankrupt  on  his  own  petition,  and  in  the 
suit  he  claims  his  exemption  and  homestead  out  of  the  surplus 
of  the  purchase-money  of  the  land,  after  satisfying  the  debt 
secured  by  the  deed  of  trust;  the  circuit  court  dismisses  the 
debtor's  application  and  makes  a  decree  distributing  the  fund. 
The  bankrupt  has  such  an  interest  in  the  case  as  entitles  him 
to  take  an  appeal. 

In  such  a  case  the  trustee  in  a  deed  did  not  sign  it,  and  it  does 
not  appear  that  he  accepted  or  acted  under  it,  and  he  lives  out 
of  the  State  and  is  not  a  party  to  the  suit.  The  court  may  de- 
cree a  sale  of  the  land  and  appoint  a  commissioner  to  make  the 
sale.  A  part  of  the  tract  of  land  lies  in  Virginia  and  a  part  in 
West  Virginia.     The  court  may  decree  a  sale  of  the  whole  tract. 

See  the  case  of  Hurt  vs.  Jbties  and  Wife,  75  Va.,  341  and 
394,  cited,  ante,  Section  3397. 

In  the  case  of  Muller  vs.  Dows,  94  U.  S.  S.  C.  Reports,  444, 
decided  October,  '1876,  it  was  held:  A  decree  foreclosing  a 
mortgage  executed  by  the  Chicago  and  Southwestern  Railroad 
Company  of  its  entire  railroad  and  franchises,  and  ordering  a 
sale  of  them,  passed  by  the  Circuit  Court  of  the  United  States 
for  the  District  of  Iowa,  which  in  a  suit  there  pending  had  jur- 
isdiction of  the  mortgagor  and  the  trustees  in  the  mortgage,  is 
not  invalid  because  a  part  of  the  property  ordered  to  be  sold  is 
in  the  State  of  Missouri. 

In  the  case  of  Poindexter  vs.  Burwell,  82  Va.,  507,  decided 
October  8,  1886,  it  was  held :  A  court  of  one  State  cannot  de- 
cree so  as  directly  to  affect  land  in  another  State;  e.  g.,  to  sell 
land.  But  it  can  act  upon  the  person,  if  he  be  within  its  juris- 
diction, and  compel  him  to  convey  the  land,  or  otherwise  com- 
ply with  its  decree. 

This  is  the  case  cited  from  10  Va.  Law  Journal,  738. 

In  the  case  of  Gibson  vs.  Burgess,  82  Va.,  650,  decided  De- 
cember 9,  1886,  it  was  held :  It  is  well  settled  that  the  courts  of 


Citations  to  the  Code  of  Virginia.  825 

this  State  are  without  jurisdiction  to  sell  and  convey  land  situ- 
ated beyond  the  limits  of  this  State. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  297. 

Section  3420. 

In  the  case  of  Dxinscoirib  vs.  Dimscomh^  2  H.  &  M.,  11,  de- 
cided September  21,  1807.  A  sole  trustee  appointed  by  will  to 
manage  the  estate  of  infants  having  died,  the  court  of  equity 
appointed  his  successor  and  required  him  to  give  bond  and 
security  for  the  faithful  performance  of  his  duty  in  a  penalty 
double  the  amount  of  the  trust  estate,  payable  to  the  judge  of 
the  court  and  his  successors  in  office. 

In  the  case  of  Pate  vs.  McClure,  4  Rand.,  164,  decided  March, 
1826,  it  was  held:  Where  a  debtor  who  has  given  a  deed. of 
trust  enjoins  a  sale  of  the  property,  and  pending  the  suit  the 
trustee  dies,  the  chancellor,  upon  dismissing  the  bill,  may  direct 
the  property  to  be  sold  by  his  marshal. 

In  the  case  of  Ten'y  vs.  Fitzgerald  et  als.,  32  Grat.,  843,  de- 
cided March,  1879.  T.  conveyed  to  S.  a  tract  of  land  of  eleven 
hundred  and  seventeen  acres  in  trust,  to  secure  a  debt  of  one 
thousand  four  hundred  dollars,  with  interest,  to  P.,  and  the 
deed  provided  that  the  trustee  should  sell  the  land,  or  so  much 
as  should  be  necessary  to  pay  the  debt.  S.  declining  to  act,  F. 
has  R.,  who  was  his  counsel,  and  was  insolvent,  substituted  as 
trustee,  and  R.  advertises  the  land,  or  so  much  as  might  be 
necessary  to  pay  the  debt,  for  sale.  T.  then  applies  for  and  ob- 
tains an  injunction,  on  the  grounds  that  R.  was  insolvent  and 
the  coimsel  of  F.,  and  because  they  refused  to  divide  the  land 
and  sell  it  in  parcels,  alleging  that  there  were  four  separate  im- 
provements on  the  land,  and  insists  that  the  trustee  shall  not 
sell  without  giving  security  for  the  safety  of  the  trust  fund. 
Held :  Insolvency  does  not  disqualify  a  person  to  act  as  trustee, 
but  when  money  of  the  trust  fund  is  to  pass  through  the  hands 
of  an  insolvent  trustee,  upon  the  application  of  one  who  is  inter- 
ested in  the  right  disbursement  of  the  money,  and  who  is  appre- 
hensive that  it  may  be  misapplied  or  misused,  a  court  of  equity 
ought  undoubtedly  to  require  of  the  trustee  security  before  he 
is  allowed  to  proceed  with  the  execution  of  the  trust. 

Although  R.  was  substituted  as  trustee  by  an  order  of  the 
court,  on  motion  of  which  T.  had  notice,  he  is  not  therefore  pre- 
cluded from  applying  to  a  court  of  equity  to  require  of  him  bond 
and  security  before  he  proceeds  to  execute  the  trust. 

Tlie  trustee  being  the  agent  of  both  parties,  it  was  his  duty 
to  sell  the  laud  as  a  whole,  or  in  separate  parcels,  as  would  be 
conducive  to  its  bringing  the  most  money.  It  was  his  duty  to 
sell  so  as  to  get  the  best  price  for  it. 

If  the  land  will  bring  a  better  price  by  dividing  it  and  selling 


826  Citations  to  the  Code  op  Virginia. 

in  separate  lots,  and  the  owner  desires  and  requests  it,  and  the- 
trustee  refuses,  the  owner  may  invoke  the  intervention  and  as- 
sistance of  a  court  of  equity,  in  a  proper  case,  to  control  the 
trustee  in  the  exercise  of  his  discretion. 

The  court  having  possession  of  this  case,  ought,  instead  of 
dissolving  the  injunction,  to  have  retained  the  case,  and  directed 
the  execution  of  the  trust.  It  had  authority  to  appoint  com- 
missioners to  view  the  land  and  take  testimony,  and  to  report 
whether  it  was  susceptible  of  division  into  different  tracts  and 
in  what  way,  with  power  to  employ  a  surveyor  to  lay  it  off  into 
as  many  different  tracts  as  would  promote  an  advantageous  sale. 
And  if  upon  the  coming  in  of  the  report  the  court  is  satisfied  from 
it  and  the  testimony  that  it  would  conduce  to  an  advantageous 
sale  to  have  it  so  divided  and  sold  in  separate  parcels,  it  would 
have  authority  to  decree  a  sale  in  that  way,  and  the  order  in 
which  the  tracts  should  be  sold  to  pay  the  debt,  interest  and 
expense. 

In  the  case  of  Diehl  vs.  MarcJiant,  87  Va.,  447,  decided  Feb- 
ruary 12, 1891,  it  was  held :  Decree  dissolving  injunction  awarded 
grantors  in  trust  deed  restraining  purchaser  from  taking  posses- 
sion of  the  land  because  substituted  trustee  had  been  appointed 
without  notice  under  this  section,  is  conclusive  on  the  grantors' 
rights,  who  failed  to  appeal  in  time,  and  is  a  bar  to  their  peti- 
tion based  on  same  ground  for  rehearing  order  of  appointment. 

Section  3421. 

In  the  case  of  Reynolds  vs.  Tlie  Bank  of  Virginia  et  als.,  6 
Grat.,  174,  decided  July,  1849.  A  debtor  conveys  a  large  pro- 
perty, real  and  personal,  in  trust  to  secure  numerous  creditors, 
who  are  divided  into  three  classes:  The  first  two  classes  are 
creditors  by  judgment.  The  trustees,  not  having  signed  the 
deed,  refuse  to  act ;  and  thereupon  two  of  the  creditors  of  the 
first  class  file  a  bill  on  behalf  of  themselves  and  the  other  cred- 
itors secured  by  the  deed  against  the  grantor  and  the  trustees; 
and  the  prayer  is  for  appointment  of  other  trustees  and  for 
general  relief.  The  grantor  appears  and  demurs  to  the  bill  for 
want  of  proper  parties  plaintiff.  Held:  In  such  case  one  or 
more  creditors  may  sue  for  themselves  and  the  other  creditors 
secured  by  the  deed.  In  such  case  it  is  error  simply  to  ap- 
point trustees  in  the  place  of  those  named  in  the  deed.  But 
the  court  should  have  the  trust  administered  under  its  own 
supervision  and  control.  The  appointment  of  commissioners  to 
sell  and  administer  the  trust  under  the  supervision  and  control 
of  the  court  is  authorized  either  under  the  prayer  for  the  ap- 
pointment of  trustees  or  under  the  prayer  for  general  relief. 

In  the  case  of  Hogan  vs.  Duke  et  als.,  20  Grat.,  244,  decided 
January,  1871,  it  was  held:  On  a  biU  to  enjoin  a  sale  of  land 


Citations  to  the  Code  of  Virginia.  827 

by  tlie  trustee,  the  answer  denies  all  the  grounds  of  equity 
stated  in  the  bill ;  and  there  is  no  proof  to  sustain  them.  The 
court  may  dissolve  the  injunction  and  have  the  sale  made  and 
the  proceeds  distributed  under  its  direction.  In  such  case  the 
trustee  having  been  declared  a  bankrupt,  it  was  especially  pro- 
per for  the  court  to  retain  the  cause  and  have  the  trust  admin- 
istered under  its  direction,  and  to  require  the  trustee  to  give 
security  for  the  faithful  performance  of  his  duties. 

The  references  to  21  Grat.,  334-346,  are  errors. 

In  the  case  of  Robinson  vs.  Mays  {Trustee),  Ohenshain  et  als.j 
76  Va.,  7C8  and  715. 

Whether  a  court,  on  dissolving  injunction  to  sale  under 
trust  deed,  should  dismiss  the  bill,  or  retain  it  with  a  view 
of  supervising  the  administration  of  the  trust,  lies  within  the 
discretion  of  the  court. 

Section  3422. 

In  the  case  of  Stayer  vs.  Long,  83  Va.,  715,  decided  Septem- 
ber 22,  1887,  it  was  held :  In  a  suit  to  annul  a  deed  of  settle- 
ment by  debtor  to  trustee  for  his  wife  and  children,  it  is  the 
court's  duty,  upon  the  trustee's  death,  to  appoint  a  substitute, 
though  it  is  provided  that  his  personal  representative  shall  exe- 
cute the  trust. 

Section  3424. 
'  In  the  case  of  Brown  vs.  Arinistead,  6  Rand.,  594,  decided 
December,  1828,  it  was  held  :  Although  it  is  a  general  rule  that 
an  infant  defendant  is  not  bound  by  a  decree,  if,  when  he  arrives 
at  age,  he  can  show  error  in  it,  yet  it  seems  that,  where  a  decree 
is  obviously  for  his  benefit,  his  rights  may  be  absolutely  bound 
by  it. 

In  the  case  of  Zirkle  vs.  McCue,  26  Grat.,  517,  decided  Sep- 
tember 24,  1875,  it  was  held :  It  is  well  settled  in  Virginia  that 
an  infant,  as  a  general  rule,  is  as  much  bound  by  a  decree 
against  him  as  a  person  of  full  age.  He  is  not  permitted  to  im- 
peach such  decree,  except  on  the  same  grounds  as  a  person  of 
full  age  may  impeach  it,  such  as  fraud,  collusion,  and  error. 
But  in  suits  for  partition,  whenever  the  court  sells  and  conveys 
an  infant's  inheritance,  he  is  entitled  to  an  opportunity  of  mak- 
ing a  defence  at  any  time  within  six  months  after  he  arrives  at 
full  age. 

The  errors  for  which  a  judicial  sale  of  an  infant's  land  may 
be  set  aside  must  be  substantial  errors.  A  fair  purchaser  is  not 
bound  to  go  through  all  the  proceedings  and  to  look  into  all 
the  circumstances  and  to  see  that  the  decree  is  right  in  all  its 
parts.  He  has  the  right  to  presume  that  the  court  has  taken 
the  necessary  steps  to  investigate  the  rights  of  parties,  and  that 
upon  such  investigation  it  has  properly  decreed  a  sale.    He  will 


828  Citations  to  the  Code  of  Yieginia. 

not  be  affected  by  any  imperfection  in  the  frame  of  the  bill  if  it 
contain  sufficient  matter  to  show  the  propriety  of  the  decree. 
The  propriety  of  the  sale  must  be  tested,  and  its  validity  deter- 
mined, by  the  circumstances  then  existing  and  the  surrounding 
circumstances.  The  only  matter  for  inquiry  is,  Did  the  court 
have  jurisdiction  of  the  subject-matter?  Were  the  proper  par- 
ties before  it  ?  Were  the  proceedings  regular  ?  Was  the  sale 
proper  under  all  the  circumstances  then  surrounding  the  par- 
ties? If  so,  the  title  of  an  innocent  purchaser  is  not  to  be  dis- 
turbed because,  from  subsequent  events,  the  sale  has  proved 
unfortunate  for  the  infants. 

In  the  case  of  Parker  vs.  McCoy,  10  Grat.,  594,  it  was  held: 
A  fair  purchaser  is  not  bound  to  go  through  all  the  proceedings, 
and  to  look  into  all  the  circumstances,  and  to  see  that  the  de- 
cree is  right  in  all  its  parts,  and  that  it  cannot  be  altered  in  any 
respect. 

In  the  case  of  Walker's  Executor  vs.  Page,  21  Grat.,  636,  it 
was  held :  The  right  of  an  infant  to  show  cause  against  a  decree 
which  affects  his  interests,  after  he  arrives  at  age,  must  be  lim- 
ited to  the  extent  of  showing  cause  existing  at  the  rendition  of 
the  decree,  and  not  such  as  arose  afterwards. 

In  the  case  of  Yoorhees  vs.  The  Bank  of  the  United  States,  10 
Peters's  Reports,  449,  it  was  held  by  the  United  States  Supreme 
Court:  The  principles  which  must  govern  this  and  all  other 
sales  by  judicial  process  are  general  ones  adopted  for  the  se- 
curity of  titles,  the  repose  of  possession,  and  the  enjoyment  of 
property  by  innocent  purchasers,  who  are  the  favorites  of  the 
law  in  every  court  and  by  every  code. 

Section  3425. 

In  the  case  of  Taylor  vs.  Cooper,  10  Leigh,  317  (2d  edition, 
327),  decided  July,  1839.  Where  a  sale  is  made  under  a  de- 
cree, if,  before  it  is  confirmed,  the  value  of  the  property  be  ma- 
terially increased  or  diminished,  the  purchaser,  under  the  Eng- 
lish -practice,  has  neither  the  benefit  in  the  one  case,  nor  the 
burden  in  the  other. 

After  the  sale  is  confirmed,  the  confirmation  relates  back  to 
the  sale,  and  the  purchaser  is  entitled  to  everything  that  he 
would  have  been  entitled  to  had  the  confirmation  and  convey- 
ance been  contemporaneous  with  the  sale.  On  the  30th  of  Oc- 
tober, 1834,  a  decree  was  made  for  the  sale  of  a  tract  of  land 
on  a  credit  of  six,  twelve,  and  eighteen  months.  Before  the  de- 
cree, there  had  been  a  contract  to  rent  the  land,  and,  pursuant 
to  that  contract,  a Jease  was  made  for  a  year,  commencing  the 
25th  of  December,  1834,  and  ending  25th  of  December,  1835. 
During  this  year,  to-wit,  on  the  10th  of  January,  1835,  sale  was 
made  under  the  decree,  that  sale  being  confirmed,  and  a  con- 


Citations  to  the  Code  of  Virginia.  829 

Yeyance  being  executed  to  the  purchaser.  Held :  The  purchaser 
must  be  considered  complete  owner  from  the  date  of  the  sale, 
and  as  entitled  to  the  rent  which  became  due  afterwards.  In 
such  case,  if  the  rent  has  been  paid  to  the  representative  of  the 
former  owner,  the  purchaser  may  recover  it  from  him  by  an 
action  of  assumpsit  for  money  had  and  received. 

In  the  case  of  J.  &  II.  Brian  vs.  Pittinan  c&  Co.,  12  Leigh, 
379,  decided  November,  1841.  In  proceeding  by  foreign  attach- 
ment in  chancery,  held:  Error  to  decree  for  plaintiff  without 
affidavit  of  defendant's  non-residence.  Error  to  decree  sale  of 
lands  without  requiring  bond  with  surety  from  plaintiff,  in  dou- 
ble the  reported  value  of  the  lands,  with  condition  for  perform- 
ing future  orders  or  decrees. 

Error  to  decree  a  sale  of  lands  for  cash. 

Error  to  direct  payment  of  money  to  creditor  and  conveyance 
of  land  to  the  purchaser  before  the  sale  is  reported  and  con- 
firmed. 

In  the  case  of  FlerriTnings  vs.  Riddick's  Executor,  5  Grat.,  272, 
decided  October,  1848.  A  decree  directs  the  defendants  to  pay 
to  the  plaintiff  certain  sums  of  money.  Upon  appeal,  the  appel- 
late court  reverses  the  decree,  and  proceeding  to  render  such 
decree  as  the  court  below  ought  to  have  rendered,  dismisses  the 
bill,  and  this  decree  is  entered  in  the  court  below.  Pending  the 
appeal,  executions  are  issued  on  the  decree  of  the  court  below, 
and  the  defendants  pay  the  money.  Held :  They  may  proceed 
by  motion  to  the  court  below  upon  notice  to  have  restitution  of 
the  money  so  paid  by  them,  and  this  though  the  decree  of  the 
appellate  court  does  not  du'ect  restitution. 

In  the  case  of  Cooper  vs.  Hepburn  et  als.,  15  Grat.,  551,  de- 
cided April,  1860,  it  was  held :  One  of  the  infant  defendants  be- 
ing over  fourteen  years  of  age  when  the  bill  was  filed,  it  was 
irregular  not  to  require  her  to  file  her  answer.  But  the  sale 
having  been  decreed,  and  it  having  been  made  more  than  six 
months  after  the  decree,  and  confirmed  without  objection,  it  is 
too  late  for  the  purchaser  eighteen  months  afterwards  to  object 
to  the  irregularity. 

In  the  case  of  Dixon  et  als.  vs.  McCu^s  Administratrix  et 
ah.,  21  Grat.,  373,  decided  August,  1871.  In  November,  1860, 
M,  was  appointed  a  commissioner  to  sell  infant's  land  on  a  credit 
of  six,  twelve,  eighteen,  and  twenty-four  months,  M.  reports 
that  after  three  trials  to  sell  he  had  failed,  and  suggests  that  it 
be  rented  out  for  the  present,  and  in  June,  1861,  there  is  an  order 
that  M.  be  authorized  to  rent  out  the  land  for  the  time,  and  on 
such  terms  as  he  might  think  judicious,  and  he  rents  it  out  for 
that  and  the  next  year.  In  March,  1863,  M.  reports  that  in  that 
month  he  has  sold  the  land  on  the  terms  of  the  decree  to  S.  and 
D.,  and  the  report  is  confirmed,  and  he  is  directed  to  collect  the 


830  Citations  to  the  Code  of  Vibginia. 

purchase-money  as  it  falls  due,  and  pay  it  to  the  receiver  of  the 
court  if  the  parties  entitled  decline  to  receive  it.  M.,  without 
giving  bond  as  required  by  the  statute,  but  which  was  not 
directed  by  the  decree,  collects  the  first  three  payments  as  they 
fall  due,  and  pays  the  money  into  a  bank  which  has  been  ap- 
pointed receiver  of  the  court.  The  last  payment  was  not  made  by 
S.  and  D.,  one  of  them  being  in  the  army,  and  the  other  a  pris- 
oner. After  the  war  they  propose  to  pay  the  last  payment,  and 
the  parties  entitled  object  to  the  sale  and  also  to  the  payments 
made,  which  were  in  Confederate  currency.  Held :  The  decree 
of  November,  1860,  for  the  sale  of  the  land,  continued  in  force, 
notwithstanding  the  order  of  June,  1861,  for  renting  it,  and  the 
commissioner  had  authority  to  sell  in  March,  1863. 

The  sale  having  been  made  more  than  six  months  after  the 
decree  for  a  sale,  and  having  been  confirmed,  the  sale  cannot  be 
set  aside  as  to  the  purchasers.  When  the  sale  was  confirmed 
in  March,  1863,  the  court  must  have  understood  and  intended 
that  the  sale  was  for  Confederate  currency,  and  the  purchase- 
money  was  to  be  paid  in  such  currency. 

The  payments  made  to  M.  and  his  payments  to  the  receiver  of 
the  court  were  valid  payments,  though  M.  had  not  given  the  bond 
required  by  the  statute,  and  the  purchasers  and  M.  are  not  lia- 
ble for  this  part  of  the  purchase-money. 

S.  and  D.  were,  under  the  circumstances,  excused  for  the  non- 
payment of  their  fourth  bonds  as  they  fell  due,  and  upon  paying 
these  bonds  they  are  entitled  to  have  the  land  conveyed  to  them. 

The  references  to  32  Grat.,  305-320,  is  an  error. 

Section  3426. 
In  the  case  of  Patterson  vs.  Eakin  et  ah.,  87  Va.,  49,  decided 
November  6,  1890,  it  was  held  :  Testator  owning  a  store-house 
whereon  was  a  vendor's  lien  and  a  farm,  devised  the  latter  to 
wife  and  children.  Store-house  and  lot,  in  a  suit  to  enforce  the 
lien,  were  sold  for  enough  to  pay  the  lien.  By  an  account  in 
that  suit  it  was  ascertained  that  the  only  other  debt  was  an  un- 
secured one,  which,  with  the  lien,  had  been  assigned  to  the  pur- 
chaser. Later,  in  suit  by  the  devisees  to  sell  the  farm,  and  after 
paying  the  debts,  to  distribute  the  proceeds,  sale  of  the  farm  was 
decreed,  and  the  causes  consolidated.  Sale  was  made  and  con- 
firmed in  vacation  without  notice  to  the  creditors.  Held :  The 
creditor,  as  purchaser,  became  party  to  the  first  suit,  and  by 
the  consolidation,  also  to  the  last  suit,  and  as  such  party  was 
under  this  section  entitled  to  notice  of  the  sale  made  in  vaca- 
tion ;  but  the  confirmation  will  not  be  set  aside  unless  he  was 
prejudiced  by  want  of  notice. 


Citations  to  the  Code  of  Virginia.  831 

CHAPTER  CXLVIII. 
Section  3435. 

In  the  case  of  Triplett  vs.  Wilson,  6  Call,  47,  decided  April, 
1806,  it  was  held :  A  bill  of  review  must  suggest  error  in  law  or 
newly  discovered  matter,  or  it  cannot  be  sustained. 

In  the  case  of  Banks  vs.  Anderson,  2  H.  &  M.,  20,  decided 
June  3,  1808,  it  was  held:  A  bill  of  review  ought  not  to  be 
granted  to  an  interlocutory  decree ;  but  if  such  decree  be  erro- 
neous it  may  be  corrected  by  motion  or  petition  to  the  court. 

In  the  case  of  Quarrier  vs.  Carter's  Representatives,  4  H.  & 
M,,  242,  decided  October,  1809,  it  was  held :  It  is  not  necessary 
to  state  in  a  decree  in  chancery  that  all  the  preliminary  steps 
towards  maturing  the  cause  for  hearing  were  taken,  it  being 
intended,  where  the  cause  is  set  for  hearing,  that  it  was  regu- 
larly done,  unless  the  party  attempting  to  impugn  the  decree 
show  to  the  contrary. 

In  the  case  of  Braxton  vs.  Le^s  Heirs,  4  H.  &  M.,  376,  de- 
cided November,  1809,  it  was  held :  It  should  appear  that  de- 
fendants, against  whom  a  decree  is  entered,  had  answered  the 
bill,  or  stood  out  process  of  contempt;  and  if  this  be  omitted,  a 
bill  of  review  may  be  tiled  on  the  ground  of  error  on  the  face  of 
the  decree. 

In  the  case  of  Hodges  vs.  Davis,  4  H.  &  M.,  400,  decided 
June,  1808,  it  was  held :  A  cause  may  be  reheard  upon  a  peti- 
tion presented  before  the  term  has  passed  in  which  the  final 
decree  was  pronounced;  but  not  afterwards,  except  by  bill  of 
review. 

In  the  case  of  Roberts's  Widow  and  Heirs  vs.  Stanton,  2  Munf ., 
129,  decided  May  30,  1810,  it  was  held :  It  is  error  to  enter  a 
decree  against  infant  defendants  without  assigning  them  a  guar- 
dian ad  litem;  and  though  the  infancy  did  not  appear  in  the 
original  proceeditigs,  yet,  if  it  be  alleged  in  a  petition  for  re- 
heaving  (the  decree  being  interlocutory),  a  guardian  ad  litem. 
should  be  appointed. 

In  the  case  of  Winston  vs.  Johnson's  Executors,  2  Munf.,  305, 
decided  June  5,  1811,  it  was  held :  Want  of  notice  of  the  time 
and  place  of  a  commissioner's  taking  an  account,  or  the  court's 
acting  upon  the  report  so  soon,  are  not  sufficient  reasons  for 
a  bill  of  review,  such  objections  not  having  been  taken  (as  they 
ought  to  have  heerx)  before  the  rendition  of  the  decree.  New 
matter  is  no  ground  for  a  bill  of  review,  unless  it  was  discov- 
ered since  the  decree  was  pronounced. 

In  the  case  of  Shepherd  vs.  Lirue,  6  Munf.,  529,  decided 
March  15,  1820,  it  was  held :  A  bill  of  review  to  decree  pro- 
nounced before  February  11,  1814,  could  not  be  received  after 
five  years  had  elapsed  from  the  date  of  such  decree.     It  is  not 


832  Citations  to  the  Code  of  Virginia. 

necessary  to  plead  the  act  of  limitations  against  a  bill  of  re- 
view ;  for  it  ought  to  appear  in  the  bill  itself  that  it  is  exhibited 
within  the  time  prescribed  by  law,  or  that  the  complainant  is 
protected  by  some  of  the  savings  in  the  act ;  otherwise,  it  ought 
not  to  be  received.  In  such  case,  if  the  fact  alleged  to  prevent 
the  operation  of  the  act  be  not  true,  it  may  be  denied  by  the 
answer  of  the  other  party ;  and,  on  the  proofs  (if  in  his  favor), 
the  bill  of  review  should  be  rejected. 

In  the  case  of  HoyalVs  Administrators  vs.  Johnson  et  als.,  1 
Rand.,  421,  decided  May,  1823,  it  was  held :  When  a  decree  is 
made  as  to  one  of  several  defendants  whose  interests  are  not  at 
all  connected  with  each  other,  with  a  direction  for  the  payment 
of  costs  as  to  that  defendant,  such  decree  is  final  as  to  him, 
although  the  cause  may  be  still  pending  in  the  court  as  to  the 
rest. 

In  the  case  of  Thornton  vs.  Stewart,  7  Leigh,  128,  decided 
January,  1836,  it  was  held :  To  a  final  decree  to  S.  against  T., 
the  latter  file.s  a  bill  of  review  for  errors  in  law  in  the  proceed- 
ings and  decree ;  S.  cannot,  in  an  answer  to  the  bill  of  review, 
allege  any  new  matters  of  fact. 

In  the  case  of  Laidley  vs.  Merrijleld,  7  Leigh,  346,  decided 
March,  1836.  A  party  against  whom  a  decree  interlocutory  in 
its  nature  has  been  rendered,  files  a  bill  which  he  styles,  and 
which  is  in  form,  a  bill  of  review,  alleging  errors  on  the  face  of 
the  decree,  as  well  as  new  facts  in  relation  to  the  matter  of  con- 
troversy, and  praying  that  the  decree  be  reviewed  and  reversed. 
Held :  Notwithstanding  the  form  of  the  bill,  it  shall  be  taken  as 
a  supplemental  bill  in  the  nature  of  a  bill  of  review  and  a  peti- 
tion for  releasing. 

In  the  case  of  Carter  vs.  Allen  et  als.,  21  Grat.,  241,  decided 
August,  1871.  C,  committee  of  D.,  a  lunatic,  files  a  bill  for  the 
sale  of  D.'s  land.  There  is  a  decree  for  a  sale,  and  S.,  the  com- 
missioner, sells,  and  reports  to  J.,  the  purchaser,  and  returns 
his  bonds  with  C.  as  his  surety.  The  report  is  confirmed,  and 
S.  reports  that  he  has  collected  the  purchase-money  and  paid 
it  to  C,  the  committee,  and  returns  the  receipts  of  C.  with  his 
report.  This  report  is  confirmed,  and  a  commissioner  is  di- 
rected to  convey  the  land  to  J.  as  he  shall  direct ;  and  the  com- 
missioner, by  direction  of  J.,  conveys  it  to  C.  Afterwards  C. 
and  his  wife,  who  is  a  sister  of  D.,  convey  the  land  to  G.  in 
trust  to  secure  a  large  debt  to  B.  After  the  death  of  D.  and  of 
C,  J.,  and  S.,  the  widow  of  C,  one  of  the  heirs  of  D.,  files  her 
bill  against  the  administrator  of  C,  and  against  the  trustee  G., 
and  against  B.,  to  set  aside  the  sale  and  the  conveyances  to  C. 
and  G.,  on  the  ground  that  C.  was  in  fact  the  purchaser,  which 
was  forbidden  by  the  statute.  She  does  not  allege  in  her  bill 
any  error  on  the  face  of  the  proceedings,  or  after-discovered 


Citations  to  the  Code  of  Virginia.  833 

evidence ;  nor  does  she  allege  or  approve  notice  of  the  fact  that 
she  relies  on,  by  G.  or  B.,  and  they  demur  and  deny  notice. 
Held :  The  bill  is  fatally  defective  as  a  bill  of  review  for  failing 
to  show  defect  in  the  proceedings,  or  to  allege  that  she  had  dis- 
covered evidence  since  the  decree  that  she  could  only  by  rea- 
sonable diligence  have  ascertained  before.  It  is  fatally  defect- 
ive as  a  bill  to  impeach  the  decree  for  fraud,  as  against  B.,  for 
failing  to  charge  him  with  notice  of  the  fraud. 

In  the  case  of  J.  B.  CampbelVs  Executors  vs.  A.  C.  CamphelVs 
Executor,  22  Grat.,  649,  decided  September  25,  1872,  it  wa& 
held :  Where  the  court  of  appeals  makes  a  decree  and  sends  the 
cause  back  for  further  proceedings,  there  cannot  be  a  bill  of  re- 
view to  correct  the  decree  of  the  court  of  appeals  for  errors  ap- 
parent on  the  face  of  the  record,  but  there  may  be  such  a  bill 
to  correct  the  decree  on  the  ground  of  after-discovered  evi- 
dence. But  to  sustain  a  bill  of  review  in  such  a  case  the  great- 
est caution  should  be  observed ;  and  the  new  matters,  to  be  suf- 
ficient ground  for  the  reversal  of  the  decree,  ought  to  be  very 
material,  and  newly  discovered,  and  unknown  to  the  party  seek- 
ing relief  at  the  time  the  decree  was  rendered,  and  snch  as  could 
not  have  been  discovered  by  the  use  of  reasonable  diligence. 

In  the  case  of  Ambrouse's  Heirs  vs.  Keller,  22  Grat.,  769,  de- 
cided October  28,  1872,  it  was  held :  If  the  plaintiflfs  present 
their  bill  of  review,  verified  by  oath,  and  ask  leave  to  file  it,  if 
the  decree  was  interlocutory,  the  court  should  treat  the  bill  as  a 
petition  for  a  rehearing  of  the  cause,  and,  if  the  decree  was 
erroneous,  should  rehear  and  reverse  it. 

An  appeal  from  the  decree  of  the  court  refusing  to  allow  the- 
bill  of  review  to  be  filed,  if  the  decree  was  final,  brings  up  for 
consideration  the  correctness  of  the  first  decree,  and,  if  the  de- 
cree was  interlocutory,  brings  up  the  whole  case. 

In  the  case  of  Sands  vs.  Lynhain  {Escheator),  27  Grat.,  291, 
decided  March,  1876.  H.,  of  foreign  birth,  died  in  1867,  seised 
and  possessed  of  real  estate  in  K.,  intestate  and  without  any 
knowTi  heirs.  The  real  estate  of  which  he  died  seised  vested  in 
possession  in  the  State  without  office  found,  or  other  proceed- 
ings at  law. 

After  the  death  of  11.,  G.  sued  his  curator,  S.,  for  a  large  debt, 
alleged  to  be  due  from  H.,  and  there  was  judgment  by  default. 
G.  then  sued  S.,  the  curator,  in  equity,  to  subject  the  real  estate 
of  which  H.  died  seised  for  the  payment  of  the  judgment. 
There  was  a  decree  for  a  sale,  and  a  sale  in  pursuance  of  a  de- 
cree, when  J.  became  the  purchaser  of  a  part  of  the  property. 
Held :  The  State  not  having  been  a  party  to  the  suit,  the  de- 
cree and  sale  are  nullity  as  to  her,  and  gave  J.  no  title  to  the 
property  purchased  by  him. 

If  J.  was  a  hojia  fide  purchaser,  he  is  entitled  to  be  substi- 

53 


834  Citations  to  the  Code  of  Virginia. 

tuted  to  the  rights  of  the  creditor,  G.,  and  upon  showing  that 
the  claim  of  G.  is  just,  to  have  the  real  estate  subject  to  his 
payment. 

After  the  death  of  H.,  an  inquisition  of  escheat  was  exe- 
cuted in  1868,  and  the  jury,  after  finding  the  death  of  H.  without 
known  heirs  seised  of  the  real  estate,  stated  that  certain  parties 
were  in  possession,  claiming  under  said  sale.  The  escheator 
returned  the  inquisition  in  June,  1869,  when  the  property  was 
advertised  as  escheated.  J.  then  filed  his  petition  in  the  proper 
court,  stating  he  had  held  the  property  under  his  purchase,  and 
asking  for  an  injunction.  The  escheator  and  register  were  made 
parties,  but  before  the  escheator  answered,  the  court  made  a  de- 
cree perpetuating  the  injunction.  The  escheator  then  filed  a 
bill  to  review  the  decree.  Held:  It  was  error  to  make  a  de- 
cree upon  the  rights  of  the  purchaser  of  the  property,  and  per- 
petuating the  injunction  without  the  answer  of  the  escheator. 

As  the  title  of  the  estate  does  not  depend  upon  the  inquisi- 
tion, it  cannot  be  effected  by  any  errors  or  irregularities  in  the 
proceedings  of  the  escheator. 

The  decree  of  the  court  was  a  decree  by  default,  and  the  bill 
of  review  by  the  escheator  may  be  treated  as  a  petition  for  a 
rehearsing  of  the  decree.  But  it  was  a  proper  case  for  a  bill  of 
review. 

In  the  case  of  Kendrtck  et  als.  vs.  Whit?7ey  et  als.,  28  Grat., 
646,  decided  July,  1877,  it  was  held :  There  is  no  statutory  bar 
to  the  time  within  which  a  petition  may  be  filed  to  correct  error 
in  an  interlocutory  decree.  Whether  in  such  a  case  a  rehear- 
ing shall  be  granted  depends  upon  the  sound  discretion  of  the 
court  upon  all  the  circumstances  of  the  case. 

The  motion  to  correct  error  in  a  judgment  or  decree  by  de- 
fault is  barred  after  the  lapse  of  five  years  from  the  date  of  the 
judgment  or  decree.  That  statutory  remedy  is,  however,  cumu- 
lative, and  has  not  superseded  or  abolished  petitions  for  re- 
hearing, which  may  still  be  had  according  to  the  course  of 
equity  in  the  same  manner  as  before  the  enactment  of  that 
statute.  Though  the  motion  here  is  barred  by  the  lapse  of 
time,  still,  inasmuch  as  the  notice  on  which  that  motion  was 
founded  was  signed  by  counsel,  was  served  upon  all  the  par- 
ties in  interest,  and  was  regularly  filed  and  contained  all  the 
requisites  of  a  petition  for  a  rehearing,  it  will  be  treated  as  a 
petition  for  a  rehearing  and  relief  given  accordingly. 

In  the  case  of  ConoUy  vs.  Conolly  et  als.,  32  Grat.,  657  and 
660-'61,  decided  January,  1880.  On  a  bill  under  the  statute  to 
invalidate  the  probate  of  a  will  which  had  been  admitted  to  pro- 
bate as  the  will  of  C,  there  was  a  final  decree  in  the  cause 
establishing  the  paper  as  the  will  of  C,  and  this  was  affirmed 
on  appeal.     A  relation  of  C,  interested  in  his  estate,  who  was 


Citations  to  the  Code  of  Virginia,  835 

an  infant  at  the  time,  and  was  not  made  a  party,  or  represented 
in  the  case,  may  file  a  bill  to  review  the  decree.  And  the  bill 
stating  the  fact  that  the  plaintiff  was  an  infant  at  the  time  of 
the  decree,  and  was  not  a  party,  or  represented  in  the  case,  and 
also  the  discovery  of  evidence  since  the  decree  which  is  stated 
is  of  great  importance  and  not  cumulative,  held  :  Upon  apphca- 
tion  for  leave  to  file  the  bill,  the  statements  of  the  bUl  must  be 
taken  as  true.  The  grounds  stated  in  the  bill  are  sufficient  to 
authorize  the  bill  of  review. 

In  the  case  of  RawUngs  {Executor)  vs.  Rawlings  et  als.,  75 
Va.,  76,  decided  December  9,  1880,  it  was  held:  If  the  decree 
in  this  case  was  interlocutory,  and  the  bill  treated  as  petition 
for  rehearing  after  the  long  acquiescence  by  the  parties 
in  the  decrees  settling  the  questions  in  the  cause,  and  all 
the  circumstances  of  the  case,  the  rehearing  should  not  be 
granted. 

In  the  case  of  Whiiten,  etc.,  vs.  Saunders,  etc.,  75  Va.,  563,  de- 
cided August  11,  1881,  it  was  held,  p.  573:  Upon  asking  leave 
to  file  a  petition  for  a  rehearing,  or  bill  of  review,  on  the 
ground  of  newly-discovered  matter,  the  new  matter  must  be  so 
stated  in  the  bill  as  to  enable  the  court  to  see,  on  inspecting  it, 
that  if  it  had  been  brought  forward  it  would  probably  have 
changed  the  character  of  the  decree ;  and  it  must  be  so  stated 
that  the  defendant  can  answer  it  understandingly,  and  thus 
present  a  direct  issue  to  the  court.  It  is  not  sufficient  to  say 
that  the  party  asking  the  leave  expects  to  prove  certain  facts. 
He  must  state  the  evidence  distinctly  on  which  he  relies,  and 
file  affidavits  of  witnesses  in  support  of  his  averments. 

In  the  case  of  Davis  vs.  Morriss's  Executors,  etc.,  76  Va.,  21. 

Bills  of  Review. — Every  distinct  averment  must  be  taken  as 
true  upon  a  mere  application  to  file  a  bill  of  review. 

In  the  case  of  Thomas  et  als.  vs.  Brooke  et  als.  76  Va.,  160. 

Idem. — Appeal. — Review. — If  errors  of  judgment  in  the  de- 
termination of  facts  be  complained  of  by  bill  of  review,  the 
errors  must  be  such  as  appear  on  the  face  of  the  decrees, 
opinion  of  the  court,  orders  and  proceedings  in  the  cause,  aris- 
ing on  facts  either  admitted  by  the  pleadings  or  stated  as  facts 
in  the  decrees  (or  opinions  of  the  court) ;  and  the  evidence  in 
the  case  cannot  be  looked  into  in  order  to  show  the  decrees  to 
be  erroneous  in  the  statement  of  the  facts. 

In  the  case  of  Hancock  vs.  Hutchison,  76  Va.,  609. 

1.  Equitable  Jurisdiction. — Bill  of  Review. — Appeal. — One 
court  cannot  review  the  decree  of  another  court  upon  a  bill  of 
review.  Acts  of  1872-73,  Chapter  395,  Section  6,  Paragraph 
383,  gives  the  circuit  court  no  such  jurisdiction  over  the  final 
decrees  of  the  county  courts,  and  only  removed  from  the  latter 
to  the  former  such  causes  at  law  and  in  chancery  as  were  pend- 


836  Citations  to  the  Code  op  Virginia. 

ing  on  the  day  the  act  took  effect.  The  only  remedy  is  an  ap- 
peal from  the  decree  of  the  county  court. 

2.  Idem, — Errors  in  Law. — Errors  in  Judgment. — On  bill  to 
review  decree  error  in  law,  the  error  must  appear  on  the  face 
of  the  decrees  or  orders  or  proceedings  in  the  cause,  arising 
on  facts  either  admitted  by  the  pleadings  or  stated  as  facts 
in  the  decrees.  But  if  the  errors  be  errors  of  judgment  in  the 
determination  of  facts,  such  errors  can  be  corrected  onl}-  by  ap- 
peal. The  evidence  cannot  be  looked  into  in  order  to  show  that 
the  decree  is  erroneous  in  its  statement  of  facts. 

In  the  case  of  Norfolk  Trust  Co.  vs.  Foster,  78  Va.,  413,  de- 
cided February  7,  1884,  it  was  held:  Bill  of  review  for  new 
matter  must  not  only  set  out  the  discovery  of  the  new  matter 
after  the  decree,  and  state  the  nature  thereof,  but  must  be  ac- 
companied by  affidavit  that  it  could  not  have  been  discovered 
by  reasonable  diligence  in  the  original  cause. 

In  the  case  of  Wayland  et  ux.  vs.  CranKs  Executor,  79  Va., 
602,  decided  December  4, 1884,  it  was  held :  There  is  not  statu- 
tory bar  to  the  time  within  which  a  petition  may  be  filed  to  cor- 
rect error  in  an  interlocutory  decree,  and  rehearing  is  granted 
or  denied  at  the  sound  discretion  of  the  court. 

In  the  case  of  Pracht  <&  Co.  et  als.  vs.  Lang  et  als.,  81  Va., 
711,  decided  February  18,  1886,  it  was  held:  Bill  of  review  may 
be  filed  hj  infant  defendants  against  whom  a  decree  has  been 
rendered  at  any  time  before  or  within  three  years  after  attain- 
ing majority,  and  may  be  asked  to  be  taken  as  a  petition  for  re- 
hearing, and  thereby  the  infant  is  entitled  to  show  any  good 
cause  existing  at  date  of  rendition  against  the  original  decree. 

In  the  case  of  TrevelyavH s  Administrators  vs.  Loift,  83  Va., 
141,  decided  April  14,  1887,  it  was  held :  Petition  is  the  appro- 
priate mode  of  applying  for  a  rehearing  of  interlocutory  decrees, 
and  bill  of  review  of  final  decrees ;  and  the  evidence  sought  to 
be  introduced  must  be  shown  by  affidavit  to  be  not  only  new, 
but  discovered  after  decree,  and  not  discoverable  by  due  diligence 
before  decree,  and  not  merely  cumulative,  but  such  as  should 
produce  a  different  decree. 

This  is  the  case  case  cited  from  11  Va.  Law  Journal,  610. 

In  the  case  of  Armistead  y^.  Bailey,  11  Va.  Law  Journal,  620, 
decided  April  28,  1887.  In  a  creditor's  suit  to  subject  lands  of 
a  decedent  to  payment  of  his  debts,  his  former  wards  came  in  by 
petition,  claiming  a  balance  due  them,  which  was  ascertained  by 
a  commissioner,  and  the  proceeds  of  the  land  were  applied  to  its 
payment.  Several  years  thereafter  A.  filed  his  petition  in  the 
cause,  claiming  to  be  the  assignee  of  a  claim  against  the  dece- 
dent, and  alleging  that  during  the  lifetime  of  the  decedent,  and 
after  their  majority,  the  wards  had  received  and  accepted  certain 
bonds  from  decedent  in  full  satisfaction  of  their  claims,  and  had 


Citations  to  the  Code  of  Virginia.  837 

sued  for  and  collected  the  same,  and  were  therefore  not  entitled 
to  any  part  of  the  fund  arising  from  the  sale  of  decedent's  land, 
which  he  prayed  to  have  refunded  by  them  and  applied  to  the 
payment  of  his  claim,  and  praying  a  rehearing  of  the  former  de- 
cree. The  petition  set  forth  no  newly  discovered  evidence,  and 
was  not  supported  by  affidavit  that  the  facts  relied  on  could  not, 
with  reasonable  diligence,  have  been  used  before  the  decree 
sought  to  be  reheard  was  made.  Held :  A  demurrer  to  the  pe- 
tion  was  properly  sustained. 

Section  3436. 

In  the  case  of  AinbleT  vs.  Wyld,  2  Wash.,  47  (1st  edition,  p. 
36),  decided  at  October  term,  1794,  it  was  held :  The  court  of 
one  county  may  on  its  equity  side  relieve  against  a  judgment  at  law 
rendered  in  another  county  by  way  of  original  jurisdiction,  and 
though  it  cannot  award  a  new  trial  at  the  bar  of  that  other  court, 
yet  it  may  direct  an  issue  to  be  tried  at  its  own  bar.  And  if  tlie 
relief  be  afforded  without  the  trial  of  an  issue,  where  that  is 
proper,  the  high  court  of  chancery  may  upon  an  appeal  after  re- 
versal retain  the  cause  and  direct  an  issue  to  be  tried. 

In  the  case  of  RandolpJis  Executors  et  als.  vs.  Tucker  et  als., 
10  Leigh,  655  (2d  edition,  688),  decided  March,  1840,  the  stat- 
ute giving  jurisdiction  to  each  of  the  judges  of  the  circuit  su- 
perior courts  to  award  injunctions  to  judgments  rendered,  or  to 
proceedings  apprehended,  out  of  his  own  circuit,  but  directing 
that  in  such  a  case  the  order  for  the  process  of  injunction  shall 
be  directed  to  the  clerk  of  the  court  of  that  county  wherein  the 
judgment  is  rendered,  or  the  apprehended  proceedings  are  to 
be  had,  gives  the  judge  jurisdiction  only  to  award  the  injunc- 
tion, not  to  hear  and  determine  the  cause.  Therefore,  when 
the  judge  of  the  Circuit  Superior  Court  of  James  City  awarded 
an  injunction  to  proceedings  to  be  had  in  the  county  of  Char- 
lotte, and  directed  the  order  for  the  process  of  injunction,  not 
to  the  clerk  of  the  court  of  Charlotte,  but  to  the  clerk  of  the 
court  of  James  City,  though  the  defendant  whose  proceedings 
were  enjoined  was  the  judge  of  the  court  of  Charlotte,  yet  it 
was  held :  The  process  and  the  subsequent  proceedings  in  the 
court  of  James  City,  which  were  founded  on  it,  were  without 
authority,  and  erroneous. 

In  the  case  of  Beckley  vs.  Palmer  et  als.  11  Grat.,  625,  de- 
cided July,  1854,  it  was  held :  A  defendant  in  an  exeeution  files 
a  bill  to  enjoin  the  execution,  on  the  ground  that  a  previous 
execution,  sued  out  on  the  same  judgment,  had  been  levied  by 
the  sheriff  on  the  property  of  another  defendant  in  the  execu- 
tion sufficient  to  discharge  it.  In  such  case  the  bill  must  be 
filed  in  the  county  in  which  the  judgment  was  recovered ;  and 
the  circuit  court  of  another  county  has  no  jurisdiction  of  the  case. 


838  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Winston  et  als.  vs.  The  Midlothian  Coal  Mining 
Company  et  als.,  20  Grat.,  686,  decided  March,  1871,  it  was 
held:  Where  a  bill  seeks  relief,  and  asks  for  an  injunction  to 
restrain  the  sale  of  real  estate  in  another  county  as  ancillary  to 
the  relief  sought,  the  court  of  the  county  or  city  where  the  de- 
fendants, or  some  of  them,  reside  has  jurisdiction  of  the  cause,^ 
and  the  order  for  the  injunction  properly  proceeds  from  the 
court  of  that  county  or  city. 

In  the  case  of  Muller,  etc.,  vs.  Bayly  et  als..,  21  Grat.,  521,  de- 
cided November,  1871,  it  was  held :  This  statute  applies  only 
to  a  pure  bill  of  injunction,  not  to  a  bill  seeking  other  relief,  to 
which  the  injunction  sought  is  merely  ancillary.  In  a  case  of  a 
pure  bill  of  injunction  to  restrain  a  sale  of  real  estate  in  one 
county,  if  the  plaintiff  institutes  his  suit  in  one  county  or  cor- 
poration, where  the  defendants  answer  and  do  not  object  to  the 
jurisdiction,  the  plaintiff  cannot  afterwards  make  the  objection, 
and  the  court  may,  under  its  general  jurisdiction,  hear  and  de- 
termine the  case. 

Both  plaintiffs  and  defendants  being  present  by  their  coun- 
sel, the  court  makes  an  order  removing  a  cause  to  the  court  of 
another  county,  assigning  as  a  reason  for  making  it  that  it  ap- 
pears that  the  cause  has  been  improperly  brought  in  this  court. 
If  this  reason  was  unfounded  in  fact  it  would  not  invalidate 
the  order  which  the  court  had  power  to  make,  and  to  which 
there  was  no  exception. 

A  cause  having  been  removed,  and  received  by  the  clerk,  the 
defendant  may,  upon  notice  in  vacation,  before  the  next  term  of 
the  court  to  which  the  cause  is  removed,  move  the  judge  to  dis- 
solve the  injunction  which  had  been  granted.  In  such  a  case 
the  judge  may,  in  vacation,  dissolve  the  injunction,  but  he  can- 
not then  dismiss  the  biO. 

In  the  case  of  Fredenheimer  vs.  Rohr,  87  Va.,  764,  decided 
April  30,  1891,  it  was  held:  Where  a  court  below,  or  a  judge 
thereof,  refuses  an  injunction,  the  remedy  is  by  application  to 
a  judge  of  this  court,  accompanied  by  the  original  papers  and 
the  order  of  refusal. 

In  the  case  of  The  N'.  c&  W.  B.  R.  Co.  vs.  Postal  Telegraph 
Cable  Company,  88  Va.,  936,  decided  March  24,  1892,  it  was 
held :  The  Chancery  Court  of  the  city  of  Richmond  cannot  en- 
join an  act  to  be  done  in  the  county  of  Prince  George. 

Section  3437. 
See  the  case  of  Randolph's  Executors  et  als.  vs.  Tucker  et  als.y 
10  Leigh,  655,  cited  ante,  Section  3436. 

Section  3438. 
In  the  case  of  Jaynes  et  als.  vs.  BrocJc,  10  Grat.,  211,  decided 


Citations  to  the  Code  of  Virginia.  839^ 

July,  1853,  it  was  held :  An  injunction  refused  by  a  judge  of  a 
circuit  court  is  presented  to  a  judge  of  a  supreme  court  of  ap- 
peals, who  also  refuses  it.  The  injunction  may  be  awarded  by 
another  judge  of  the  court  of  appeals. 

In  the  case  of  Wilder  vs.  Kelly,  88  Va.,  274,  decided  July  16, 
1891.  Where  a  circuit  court  judge  refused  to  award  an  injunc- 
tion, the  remedy  is  by  application,  accompanied  by  the  original 
papers  and  the  order  of  refusal  to  a  judge  of  this  court,  who  may 
review  and  reverse  the  action  of  the  circuit  court  judge,  and 
award  the  injunction,  which  injunction  so  awarded,  it  is  the 
province  of  the  circuit  court  judge  to  enforce  and  restrain  any 
disobedience  thereto  by  attachment  or  other  proper  process. 
Nor  does  it  matter  that  the  injunction  in  question  is  the  second 
or  supplemental  bill  for  an  injunction,  since  a  motion  to  reinstate 
an  injunction  on  additional  evidence  is  in  the  nature  of  an  origi- 
nal application  for  an  injunction,  and  where  the  circuit  court  re- 
fuses to  enforce  obedience  to  such  injunction  so  awarded  by  a 
judge  of  this  court,  the  writ  of  mandamvs  may  be  issued. 

Sechon  3441. 

In  the  case  of  Holliday  et  ux.  vs.  Coleman  et  nx.,  2  Munf., 
162,  decided  March  25,  1811,  it  was  held :  The  power  of  a  court 
of  equity  to  rule  a  tenant  for  life,  of  slaves  or  other  personal 
property,  to  give  security  that  the  property  shall  be  forthcoming 
at  his  or  her  death,  is  to  be  exercised,  not  as  a  matter  of  course, 
but  of  sound  discretion,  according  to  circumstances. 

Section  3442. 

In  the  case  of  Woodso7i  vs.  Johns,  3  Munf.,  230,  decided  April, 
8,  1812,  it  was  held :  The  security  in  a  bond  for  the  prosecution 
of  an  injunction  is  not  liable  for  the  costs  and  damages  which 
may  accrue  on  an  appeal  to  a  superior  court. 

In  the  case  of  Fox  &  Yowles  vs.  Edwards  {Executor),  6 
Munf.,  36,  decided  December,  1817,  it  was  held :  In  an  action 
upon  a  bond  for  prosecuting  an  injunction  to  stay  proceedings 
on  a  judgment  at  law  for  a  debt  bearing  interest,  which  injunc- 
tion is  dissolved  and  the  bill  dismissed,  the  plaintiff  is  entitled 
to  a  verdict  for  the  amount  of  the  principal  sum,  with  lawful 
interest  to  the  time  of  finding  such  verdict,  the  costs  at  law  and 
in  chancery  (costs  being  awarded  to  the  plaintifif  by  the  decree), 
with  damages  on  the  said  principal  at  the  rate  of  10  per  cent, 
per  annum  during  the  pendency  of  the  injunction,  although  the 
condition  of  the  bond  be  for  payment  of  the  judgment  and  costs 
of  the  injunction  (if  ruled  to  be  paid  "by  the  complainant"), 
without  mentioning  interest  or  damages. 

In  the  case  of  Ashhy  vs.  Kig&»'  et  als.,  1  Va.  (Gilmer),  153,  de- 


840  Citations  to  the  Code  of  Virginia, 

«ided  October  2,  1820,  it  was  held :  The  judge  failing  to  direct 
a  release  of  errors  on  granting  an  injunction,  this  court  will  re- 
spect the  principle. 

In  the  case  of  Lomax  vs.  Picot,  2  Rand.,  247,  decided  Feb- 
ruary 7,  1824,  it  was  held:  It  is  error  in  the  chancellor  to 
grant  an  injunction  without  requiring  security,  except  in  the 
case  of  executors,  administrators,  and  other  fiduciary  charac- 
ters. 

In  the  case  of  White  vs.  Clay's  Executors,  7  Leigh,  68,  de- 
cided January,  1836.  The  condition  of  an  injunction  bond  is 
broken  by  a  dissolution  of  the  injunction  in  part,  as  well  as  by 
a  total  dissolution ;  so  that  an  action  lies  on  a  bond,  whether 
the  injunction  be  partly  or  wholly  dissolved. 

To  debt  on  an  injunction  bond,  defendant  pleads  that  the  in- 
junction cause  is  still  pending  on  a  bill  of  review  in  the  court  of 
appeals,  concluding  with  a  verification ;  plaintiff  replies  that  the 
bill  of  review  mentioned  in  the  plea  has  been  decided  by  the 
court  of  appeals,  concluding  to  the  country;  and  issue  joined. 
Held: 

1.  The  first  fault  in  pleading,  if  fault  it  was,  having  been  com- 
mitted by  the  defendant,  he  cannot  complain  of  the  same  fault 
in  the  pleading  of  plaintiff;  but, 

2.  It  was  necessary  in  such  case  to  conclude  to  the  court,  with 
a  verification  by  the  record. 

On  the  trial  of  an  action  of  debt  on  an  injunction  bond,  ex- 
tracts from  the  record  of  the  injunction  cause  of  the  decrees  in 
the  cause  are  competent  and  sufficient  evidence  without  pro- 
ducing the  whole  record. 

An  injunction  bond  not  strictly  pursuing  the  directions  of  the 
statute  is  yet  held  a  good  statutory  bond. 

See  the  case  of  Bentley  vs.  Harris's  Administrator,  2  Grat., 
357,  cited  ante.  Section  2893. 

In  the  case  of  Harman  vs.  Howe,  27  Grat.,  676,  decided  June, 
1876.  A  bond  is  given  upon  an  injunction  to  a  judgment  for 
money,  and  in  penalty  it  is  said  "in  the  just  and  full  sum  of 
seven  hundred  and  seventy-six  lawful  money  of  Virginia."  The 
word  "dollars"  is  obviously  left  out  by  mistake,  and  the  bond 
will  be  treated  as  if  the  word  was  in  it. 

The  clerk  states  at  the  foot  of  an  injunction  bond  that  it  was 
signed,  sealed,  and  delivered  in  the  presence  of  the  court,  and 
it  is  dated  and  endorsed  as  filed  on  the  23d  October,  on  which 
day  it  appears  from  the  records  of  the  court  that  it  was  not 
then  in  session.  Held :  The  statute  does  not  require  the  bond 
to  be  executed  in  the  presence  of  the  court,  but  before  the  clerk 
of  the  court  in  which  the  judgment  was.  Though  its  being 
given  before  the  court,  if  it  was,  cannot  vitiate  it; 


Citations  to  the  Code  of  Virginia.  *       841 

The  judge  granting  an  injunction  to  a  judgment  for  money 
-endorses  on  the  bill,  "  Injunction  granted  on  the  usual  terms," 
without  stating  on  what  terms  it  was  to  become  operative.  The 
injunction  bond  is  given  in  penalty  about  double  the  amount  of 
the  judgment,  and  is  in  other  respects  as  directed  by  the  statute. 
The  penalty  being  about  double  the  amount  of  the  judgment, 
and  that  being  the  amount  of  the  penalty  generally  prescribed 
in  such  cases,  this  would  seem  to  be  a  compliance  with  the 
order,  and  the  order  a  compliance  with  the  law,  which  directs 
that  the  judge  shall  prescribe  the  amount  of  the  penalty.  But 
however  that  may  be,  the  obligors  to  the  bond  are  estopped 
from  denying  that  penalty  of  the  bond  conformed  to  the  direc- 
tion of  the  judge  who  awarded  the  injunction. 

In  the  case  of  Warwick  and  Wife  and  Another  vs.  Norvel,  1 
Leigh,  96,  decided  February,  1829,  it  was  held :  Where  a  party 
defendant  in  a  suit  at  law,  before  judgment,  resorts  as  plaintiff 
to  equity,  praying  relief  against  the  claim  asserted  at  law,  on 
equitable  grounds,  and  an  injunction  to  stay  proceedings  at  law, 
the  injunction  should  be  granted  only  on  condition  that  he  con- 
fess judgment  at  law,  though  he  may  have  grounds  of  defence 
at  law  distinct  from  the  grounds  of  reUef  preferred  to  the  court 
of  equity. 

Where  an  injunction  has  been  granted  in  such  a  case,  and 
the  chancellor  dissolves  the  injunction,  unless  the  plaintiff  in 
equity  will  confess  judgment  at  law,  on  appeal  from  such  order 
this  court  will  not  examine  the  merits,  though  at  the  time  the 
order  was  made  the  cause  stood  for  hearing. 

In  the  case  of  The  Great  Falls  Manufacturing  Company  vs. 
Henrys  Admi?iistj'ator,  25  Grat.,  575,  decided  December,  1874, 
it  was  held :  When  a  defendant  in  an  action  at  law  files  a  bill 
to  make  his  defence  in  equity,  and  asks  for  a  stay  of  proceed- 
ings in  the  law  court,  it  is  a  matter  in  the  discretion  of  the 
chancellor,  in  granting  the  injunction,  whether  he  will  or  will 
not  require  a  confession  of  judgment  in  the  action  at  law.  In 
such  a  case,  if  the  confession  of  judgment  in  the  action  at  law 
is  required,  the  order  should  require  the  judgment  to  be  taken 
to  be  dealt  with  as  the  court  shall  direct. 

Though  the  order  requiring  the  confession  of  judgment  is 
absolute,  yet,  if  the  court  dissolves  the  injunction  and  dismisses 
the  bill  on  the  ground  that  the  plaintiff's  defence  to  the  action 
is  legal,  and  that  the  court  of  equity  has  no  jurisdiction,  the 
decree  should  direct  that  the  judgment  at  law  should  be  set 
aside  and  that  the  case  be  reinstated  as  it  was  when  the  injunc- 
tion was  granted ;  and  if  this  is  not  done,  the  chancery  court  will, 
on  motion  afterwards  made,  direct  the  judgment  to  be  set  aside. 

In  the  case  of  Staples  vs.  Turner  {Adini7iistrator)  et  als.,  29 


842  Cetations  to  the  Code  of  Virginia. 

Grat,,  330,  decided  NoTember,  1877.  S.,  who  is  executor  of  his 
father,  A.,  and  M.,  who  is  administrator  of  T.,  have  a  settlement 
of  accounts  between  S.  individually  and  as  executor  of  T.,  and 
A.  in  his  lifetime,  said  accounts  extending  through  many  years, 
and  embracing  many  items.  All  these  items,  whether  as  ex- 
ecutor or  as  individual,  are  brought  into  the  statement,  and 
there  is  a  balance  against  S.  of  $1,176.10.  At  the  foot  of 
of  the  statement  S.  says  that  he  is  only  to  be  individually  re- 
sponsible for  what  appeared  to  be  due  from  him  in  his  individ- 
ual character.  M.  sues  S.  upon  this  account,  and  S.  applies  for 
an  injunction  to  stay  proceedings,  which  is  granted  upon  his 
confessing  judgment.  In  his  bill  he  points  out  a  number  of 
what  he  alleges  are  errors  in  the  account,  and  items  which  are 
against  his  testator's  estate.  Held :  It  is  a  proper  case  for  re- 
lief in  equity.  The  injunction  should  have  been  granted  with- 
out requiring  S.  to  confess  judgment  in  the  action  at  law.  The 
court  should  direct  the  accounts  as  individual  and  as  executor 
to  be  taken  separately.  Though  S.  should  not  have  been  re- 
quired to  confess  a  judgment  in  the  action  at  law,  it  may  be 
held  as  a  security  for  any  amount  found,  upon  settling  the  ac- 
counts, to  be  due  from  him  individually. 

In  the  case  of  Thornton  vs.  Thornton,  31  Grat.,  212,  decided 
November,  1878,  it  was  held :  If  it  was  proper  to  require  a  con- 
fession of  judgment,  it  should  expressly  provide  that  the  judg- 
ment so  confessed  was  thereafter  to  be  dealt  with  as  the  chan- 
cery court  might  direct. 

Although  there  is  no  such  express  provision  in  the  order 
granting  the  injunction,  the  court,  if  of  opinion  that  the  bill 
should  be  dismissed  for  want  of  jurisdiction,  should,  in  the 
order  of  dismissal,  direct  that  the  judgment  at  law  be  set  aside. 

Section  3444. 

In  the  case  of  MadforcVs  Executor  vs.  Innes^s  Execxdor,  1  H. 
<fe  M.,  7,  decided  September  23,  1806,.  it  was  held:  A  motion  to 
dissolve  an  injunction  ought  never  to  be  continued  unless  from 
some  very  great  necessity. 

The  court  of  chancery  is  always  open  to  reinstate  as  well  as 
to  grant  injunctions. 

The  complainant  should  always  be  ready  to  prove  the  allega- 
tions in  his  bill  of  injunction,  even  before  the  answer  is  filed. 

In  the  case  of  North's  Executor  vs.  Perrow  and  Others,  4 
Rand.,  1,  decided  January,  1826,  it  was  held :  On  a  motion  to 
dissolve  an  injunction,  it  ought  not  to  be  required  of  the  de- 
fendant to  invalidate,  by  full  proof,  the  allegations  of  the  bill, 
but  the  burden  of  proof  lies  on  the  plaintiff  to  support  them. 
All  that  is  required  of  the  defendant  is  to  show  that  the  evi- 
dence of  the  plaintiff  is  entitled  to  no  credit. 


Citations  to  the  Code  of  Vibginia.  843 

In  the  case  of  Randolph  vs.  Randolph^  6  Kand.,  194,  decided 
March,  1828,  it  was  held :  It  is  an  irregular  proceeding  in  a 
chancellor  to  dissolve  an  injunction  in  court,  with  a  direction 
that  the  order  of  dissolution  should  not  go  out,  and  then,  in  va- 
cation, to  direct  that  the  order  should  go  out. 

In  the  case  of  Kahn  vs.  Kerngood,  80  Va.,  342,  decided 
March  19,  1885,  it  was  held :  From  an  order  overruling  an  in- 
junction and  adjudicating  the  principles  of  the  cause,  an  appeal 
lies. 

When  on  bill  and  answer  denying  aU  equity  in  the  bill,  there 
is  motion  to  dissolve  the  injunction,  it  is  customary  to  dissolve, 
but  for  good  cause  the  motion  may  be  overruled,  and  the  injunc- 
tion continued  until  the  hearing,  without  any  adjudication  of  the 
principles  of  the  cause. 

In  the  case  of  Jenktn  c5  Cutchin  vs.  Waller  <&  Jordan,  80  Va., 
668,  decided  September  17,  1885.  It  rests  in  the  sound  discre- 
tion of  the  court  to  dissolve  an  interlocutory  injunction  upon 
the  coming  in  of  the  answer  denying  the  equities  of  the  bill,  or 
to  continue  it  to  a  final  hearing,  especially  where  fraud  is  the 
gravamen  of  the  bill,  or  where  dissolution  would  result  in  greater 
injury  than  continuance  till  hearing. 

Mercantile  firms  having  on  hand  large  stocks  of  perishable 
goods  confessed  judgments  for  large  sums  in  favor  of  certain 
preferred  creditors.  Executions  were  issued  and  levied,  and  the 
goods  advertised  for  sale.  Unpreferred  creditors  bring  their 
bill,  charged  fraud  in  the  confession  of  said  judgments,  usury  in 
the  debts  whereon  the  judgments  were  founded,  want  of  juris- 
diction in  the  courts  wherein  they  were  confessed,  etc.,  and  ob- 
tain injunction  to  sale  and  appointment  of  receiver  to  take 
charge  of  the  goods  and  sell  same  publicly  or  privately,  upon 
giving  bond  of  sufficient  penalty.  Judgment-creditors  present 
their  answers  to  the  bill,  and  move  to  dissolve  the  injunction  in 
vacation.  No  deposition  had  been  taken,  but  affidavits  sustained 
the  allegations  of  the  bill,  and  receiver  had  executed  ample 
bond  and  taken  possession  of  the  goods.  The  motion  to  dis- 
solve was  overruled,  and  the  injunction  continued  to  the  hear- 
ing on  the  merits,  the  decision  of  all  questions  being  reserved 
until  then.  Held:  Such  action  is  sustained  by  the  sound  dis- 
cretion of  the  court  under  the  circumstances,  and  should  be 
affirmed. 

Section  3445. 

See  the  case  of  Fox  &  Vowles  vs.  Edwards  {Executor),  6 
Munf.,  36,  cited  ajite,  Section  3442. 

In  the  case  of  Garnett  vs.  Jones,  4  Leigh,  633,  decided  De- 
cember, 1833.  Execution  is  awarded  on  a  forthcoming  bond 
against  the  principal  and  the  surety  therein  bound  ;  the  princi- 
pal alone  obtains  an  injunction  to  stay  proceedings  at    law, 


844  Citations  to  the  Code  of  Virginia. 

whicli  injunction  is  dissolved.  Held :  The  surety  is  not  liable 
for  the  damages  incurred  by  the  principal  for  retarding  the  exe- 
cution by  an  injunction;  and  if  an  execution  issue  against  the 
surety  as  well  as  against  the  principal  for  such  damages,  it  ought, 
on  surety's  motion,  to  be  quashed.  The  execution  should  be  so 
moulded  as  to  exempt  the  surety  from  the  damages,  and  to 
make  the  principal,  who  incurred  them,  alone  liable  therefor. 

In  the  case  oiWashington s  Executor  vs.  Parks,  6  Leigh,  581, 
decided  July,  1835,  it  was  held:  Upon  the  dissolution  of  an  in- 
junction on  a  judgment,  the  damages  for  retarding  execution  by 
the  injunction  should  be  computed  on  the  aggregate  of  princi- 
pal, interest),  and  costs,  appearing  due  on  the  judgment  at  the 
date  of  the  injunction. 

And  the  damages  should  be  ascertained,  and  the  precept  to 
levy  them  inserted  in  the  body  of  the  execution. 

In  the  case  of  Medley  vs.  PannilVs  Administrator ;  Same  vs. 
Tuniis  Executors,  1  Rob.,  63  (2d  edition,  67). 

Where,  pending  an  injunction  to  a  judgment  for  money,  the 
judgment-creditor  dies,  and  there  is  a  revival  in  the  name  of  his 
administrator  of  the  suit  in  equity,  but  not  of  the  judgment  at 
law,  it  is  not  regular,  though  the  object  be  to  avoid  the  delay 
that  would  take  place  after  a  dissolution  of  the  injunction  in  re- 
viving the  judgment,  to  make  a  decree  in  the  suit  in  equity  for 
the  money  which  will  be  payable  to  the  creditor  upon  such  dis- 
solution. The  court  of  equity  is  to  dissolve  or  perpetuate  the 
injunction,  or  perpetuate  it  in  part  and  dissolve  it  for  the  balance, 
and  it  may  in  the  latter  case,  if  it  shall  appear  just,  direct  that 
no  damages  shall  be  paid  by  the  complainant ;  but  it  is  not,  in 
any  injunction  case,  not  even  where  the  injunction  is  wholly 
dissolved,  to  make  a  decree  for  the  damages  payable  to  the  credi- 
tor on  the  dissolution. 

In  the  case  of  Jeter  vs.  Langhom,  5  Grat.,  193,  decided  July, 
1848,  it  was  held:  An  injunction  is  dissolved,  and  on  appeal  the 
decree  is  afl&rmed.  Ten  per  cent,  damages  is  to  be  computed 
from  the  time  when  the  injunction  was  granted  to  the  date  of 
the  dissolution  thereof  in  the  court  below ;  but  not  for  the  time 
it  was  pending  in  the  appellate  court. 

In  the  case  of  Michaux's  Administrator  vs.  Brown  et  als.,  10 
Grat.,  612,  decided  January,  1854,  it  was  held:  A  judgment  is 
a  lien  upon  an  equity  of  redemption  in  land,  and  will  be  re- 
ferred to  a  subsequent  purchaser  of  the  equity  of  redemption 
not  having  the  legal  title ;  and  the  lien  of  the  judgment  extends 
to  the  whole  equity  of  redemption.  Though  the  judgment  was 
enjoined  at  the  time  of  the  purchase,  yet  upon  the  dissolution 
of  the  injunction  the  lien  relates  back  to  the  date  of  the  judg- 
ment, and  so  has  priority  over  the  equity  of  the  purchaser. 
The  damages  on  the  dissolution  of  an  injunction  to  a  judgment 


Citations  to  the  Code  of  Virginia.  845 

become,  as  to  the  party  obtaining  it,  a  part  of  the  judgment, 
and  are  embraced  in  the  lien  of  the  judgment  upon  the  equity 
of  redemption. 

A  judgment  being  rendered  for  the  penalty  of  a  bond  to  be 
discharged  by  the  payment  of  the  principal  sum  due  and  in- 
terest, and  the  payment  of  the  money  having  been  delayed  by 
an  injunction  until  the  principal  due  and  the  interest  exceed  the 
penalty,  the  lien  of  the  judgment  only  extends  to  the  penalty, 
the  damages  upon  the  dissolution  of  the  injunction  and  the 
costs  at  law,  without  continuing  interest. 

In  the  case  of  tlaytor  vs.  Anthony,  15  Grat.,  518,  decided 
April,  1860,  it  was  held :  If  a  person  not  a  party  to  the  judg- 
ment enjoins  it  and  the  injunction  is  dissolved,  he  is  liable 
to  pay  the  ten  per  cent,  damages  prescribed  by  the  statute. 
Though  the  condition  of  the  injunction  bond  provides  for  the 
payment  of  such  damages  as  may  be  awarded  by  the  court,  and 
the  court  simply  dissolves  the  injunction  and  dismisses  the  bill, 
yet  ^e  order  of  dissolution  necessarily  imports  that  the  damages 
are  to  be  paid,  unless  they  are  expressly  remitted  by  the  terms 
of  the  order. 

"Where  upon  a  bill  of  review  an  injunction  is  granted  which 
is  afterwards  dissolved,  the  damages  are  to  be  computed,  not 
upon  the  amount  of  the  judgment  at  the  time  it  was  first  granted 
on  the  original  bill,  but  on  the  amount  of  the  judgment  at  the 
time  it  was  granted  on  the  bill  of  review.  If  the  judgment, 
principal,  interest,  costs  and  damages  on  the  injunction  bond, 
yet  the  plaintiff  in  the  judgment  having  sued  out  execution  on 
the  judgment  and  made  the  money,  principal,  interest  and  costs, 
may  recover  the  damages  by  suit  upon  the  bond. 

Section  3446. 

In  the  case  of  Franklin  vs.  Wilkinson,  3  Munf.,  112,  decided 
March  17,  1812,  it  was  held :  After  an  injunction  bond  has  been 
wholly  dissolved,  if  the  cause  be  set  for  hearing  on  motion  of 
the  defendant  in  equity,  he  cannot  take  advantage  of  the  cir- 
cumstance that  the  bill  should  have  been  dismissed  under  the 
act  of  assembly. 

In  the  case  of  Hough  vs.  Shreeve,  4  Munf.,  490,  decided  No- 
vember 8,  1815,  it  was  held:  The  third  section  of  the  act  of 
January  20,  1804,  "concerning  the  proceedings  in  courts  of 
chancery,"  does  not  apply  to  a  bill  which  is  not  merely  a  bill  of 
injunction,  but  has  the  farther  object  in  view  of  obtaining  a  de- 
cree for  conveyance. 

In  the  case  of  Singleton  vs.  Lewis  et  als.,  6  Munf.,  397,  decided 
October  13,  1819,  it  was  held:  Again  decided,  viz.:  that  a  bill 
of  injunction  ought  not  to  be  dismissed  at  the  next  term  after 
dissolution,  under  the  third  section  of  the  act  of  January  20, 


846  Citations  to  the  Code  op  Virginia. 

1804,  if  such  bill  have  such  objects  besides  those  embraced  by 
the  injunction. 

In  the  case  of  Pulliam  vs.  Winston  et  als.,  5  Leigh,  324,  de- 
cided April,  1834,  it  was  held :  The  statute  directing  the  dismis- 
sion of  bills  of  injunction  at  the  next  term,  etc.,  after  the  disso- 
lution of  the  injunction,  unless  cause  be  shown  to  the  contrary, 
does  not  apply  to  cases  in  which  the  bill  claims  other  relief  be- 
sides the  injunction. 

The  case  of  Adkins  vs.  Edwards,  83  Va.,  300,  supports  and 
cites  the  case  of  Pulliam  vs.  Winston,  5  Leigh,  324,  sxqyra. 

CHAPTER  CLXIX. 

Section  3447. 

In  the  case  of  Reid's  Administrators  vs.  Strider's  Administra- 
tors, 7  Grat.,  76,  decided  May  14,  1850,  it  was  held :  A  writ  of 
error  coram  vohis  does  not  lie  to  the  supreme  court  of  appeals. 

Section  3448.  * 

In  the  case  oiWorsham  vs.  McKensie,  1  H.  &  M.,  342,  decided 
June  22,  1807, it  was  held:  After  a  confession  of  a  judgment  by 
an  executor  in  an  action  brought  on  his  executorial  bond  for  the 
purpose  of  recovering  against  him  and  his  securities  for  a  devas- 
tavit, he  cannot  resort  to  a  court  of  equity  for  relief  on  the 
ground  that  he  had  fully  admitted  the  assets  of  his  testator. 

In  the  case  of  Hite's  Heir  vs.  Wilson,  2  H.  &  M.,  268,  decided 
April,  1808,  it  was  held:  If  a  release  of  errors  be  pleaded  to  a 
supersedeas  and  found  for  the  defendant  in  error,  the  judgment 
should  be,  not  that  the  judgment  of  the  court  below  be  affirmed, 
but  that  the  plaintiff  be  barred  of  his  writ  of  supersedeas. 
,     The  reference  to  2  H.  &  M.,  575,  is  an  error. 

In  the  case  of  Edmonds  vs.  Green,  1  Rand.,  44,  decided  Jan- 
uary, 1822,  it  was  held :  A  confession  of  judgment  on  a  motion 
on  a  forthcoming  bond  will  operate  as  a  release  of  errors  in  the 
original  judgment.  Therefore,  where  an  office-judgment  is  erro- 
neously entered  up  against  the  principal  and  special  bail,  the 
latter  afterwards  giving  a  forthcoming  bond  and  confessing  judg- 
ment on  the  said  bond,  he  cannot  avail  himself  of  the  error  in 
the  original  judgment. 

In  the  case  of  McRae  vs.  Tiirnpihe  Co.,  3  Rand.,  160,  decided 
February  10,  1825,  it  was  held :  The  confession  of  a  judgment 
on  a  forthcoming  bond  is  a  release  of  errors,  if  any  exist,  in  the 
original  judgment. 

In  the  case  of  Stanard  vs.  Timherlake,  3  Leigh,  681,  decided 
May,  1832,  it  was  held :  A  confession  of  judgment  on  a  forth- 
coming bond  is  a  release  of  all  errors  in  the  previous  proceed- 
ings. 


Citations  to  the  Code  of  Virginia.  847 

In  the  case  of  RicTiardaori  s  Executor  vs.  Jones,  12  Grat.,  53, 
decided  January  29,  1855,  it  was  held :  An  entry  that  the  de- 
fendant, relinquishing  his  plea  of  payment,  saith  he  cannot 
gainsay  the  plaintiff's  action  for  the  sum  of,  etc.;  and  judgment 
accordingly  is  a  judgment  by  confession,  and  releases  all  pre- 
vious errors  in  the  proceeding  in  the  cause. 

In  the  case  of  BrockenhrougIC s  Executrix  et  als.  vs.  Brocken- 
irough's  Admi7nstrator  et  als.,  31  Grat.,  580  and  599,  decided 
March,  1879.  L.  brings  an  action  on  a  bond  against  B.,  which 
is  on  the  office-judgment  of  the  court  at  its  March  term,  which 
commences  on  the  third  of  the  month,  and  the  office-judgment 
is  confirmed  on  the  fifth,  which  is  the  last  day  of  the  term  of 
the  court.  On  the  first  day  of  the  same  term  of  the  court  B. 
goes  into  court  and  confesses  a  judgment  in  favor  of  S.,  no  suit 
having  been  instituted  against  B.  Held :  The  judgment  in  favor 
of  S.  is  valid,  though  no  suit  had  been  instituted  by  him  against 
B.  That  the  judgment  of  L.  relates  back  to  the  first  day  of  the 
term,  and  the  law  not  regarding  a  fraction  of  a  day,  both  judg- 
ments stand  as  of  the  same  date. 

In  the  case  of  Alexander  vs.  Alexander  et  als.,,  85  Va.,  353, 
decided  August  23,  1888,  it  was  held :  A  power  of  attorney  to 
confess  a  judgment  need  not  be  under  seal.  Power  of  attorney 
to  confess  a  judgment  executed  by  a  firm,  and  the  judgment  con- 
fessed thereunder,  are  valid. 

Section  3449. 

In  the  case  of  Jones  vs.  Bradshaw,  16  Grat.,  355,  decided 
February  18,  1863,  it  was  held :  If  pending  an  appeal  in  the 
court  of  appeals  the  defendant  has  satisfied  the  decree,  upon  a 
reversal  of  it  the  circuit  court  should  make  an  order  of  restitu- 
tion in  his  favor. 

In  the  case  of  Green  (&  Suttle  vs.  Massie,  21  Grat.,  356,  de- 
cided August,  1871,  it  was  held,  p.  362-'64:  If  a  discovery  from 
the  plaintiff  is  necessary  to  enable  the  defendant  to  make  his 
defence  at  law,  he  must  file  his  bill  for  the  discovery  before  the 
judgment  has  been  rendered  against  him;  and  he  cannot  go 
into  equity  for  discovery  and  relief  against  the  judgment  after 
it  has  been  rendered. 

In  the  case  of  O.  A.  (&  M.  R.  R.  Co.  vs.  Miles,  76  Va.,  773. 

Demurrer  to  Evidence. — By  defendant  company's  demurrer, 
it  must  be  held  to  admit  all  plaintiff's  evidence,  and  all  in- 
ferences justly  deducible  therefrom,  and  to  waive  all  its  own 
evidence  conflicting  with  the  plaintiff's,  and  all  inferences  dedu- 
cible from  its  own  evidence  (though  not  in  conflict  with  plain- 
tiff's) which  do  not  necessarily  result  therefrom. 

In  the  case  of  Salamone  vs.  Keiley  et  als.,  80  Va.,  86,  decided 
January  15,  1885,  it  was  held :  Where  a  bill  fails  to  state  a  case 


848  Citations  to  the  Code  op  Virginia. 

proper  for  relief  in  equity,  the  court  will  dismiss  it  at  the 
hearing,  though  no  objection  has  been  made  in  the  pleadings. 
But  a  defective  biU  may  be  aided  by  the  answer  and  the  evi- 
dence. 

In  the  case  of  Roanoke  Land  and  Improvement  Company  vs^ 
Kam  <&  Hickson^  80  Va.,  589,  decided  June  25,  1885,  it  was 
held,  p.  595  :  Judgment  will  not  be  reversed  for  defect,  imper- 
fection, or  omission  in  the  pleadings,  unless  in  court  below  there 
was  a  demurrer.  But  a  failure  to  state  any  cause  of  action  at 
all  is  not  cured  by  the  statute. 

In  the  case  of  N.  &  F.  R.  R.  Co.  vs.  Wijsor,  82  Va.,  250,  de- 
cided July  8,  1886,  it  was  held :  Counts  ex  delicto  cannot  be- 
joined  in  the  same  declaration  with  counts  ex  contractu,  such 
misjoinder  makes  the  declaration  bad  on  demurrer.  But  unless 
a  demurrer  has  been  filed  and  overruled,  such  misjoinder  will 
not  be  grounds  for  a  motion  in  arrest  of  judgment  or  writ  of 
error. 

Section  3450. 

In  the  case  of  Dabney  vs.  Preston  s  Administrators,  25  Grat., 
838,  decided  February  18,  1875,  it  was  held:  The  decree  in  the 
court  below  was  made  when  there  was  no  replication  to  the 
answer  of  D.,  and  after  an  appeal  from  the  decree  by  D.  was 
perfected,  the  court,  on  the  motion  of  the  plaintifi's,  made  an 
order  permitting  the  plaintiffs  to  file  the  replication  nunc  pra 
tunc.  If  it  was  a  proper  case  for  such  an  order,  the  court  should 
have  allowed  D.  to  take  testimony  to  meet  the  new  phase  of  the 
case  presented  by  the  issue  thus  taken  on  his  answer. 

The  reference  to  31  Grat.,  13,  18  and  19,  is  an  error. 

In  the  case  of  Simmons  vs.  Simmons' s  Administrator,  33  Grat., 
451  and  458-59,  decided  July,  1880.  With  the  answer  of  a  de- 
fendant a  bond  of  the  plaintiff's  decedent  is  filed.  The  plaintiff 
filed  no  replication,  but  pleaded  7io7i  est  factum  to  the  bond  filed 
with  the  answer.  On  the  evidence  being  heard,  the  court  below 
decided  that  the  bond  was  not  the  deed  of  the  plaintiff.  Held : 
While  it  was  irregular  and  improper  to  have  allowed  a  plea  to 
have  been  filed  to  an  answer,  and  the  proper  course  was  for  the 
plaintiff  to  have  filed  a  general  repUcation  to  the  answer,  accom- 
panied by  an  affidavit,  putting  in  issue  the  execution  of  the 
bond,  which  would  have  been  sufficient  to  require  the  defendant 
to  prove  such  execution,  yet,  as  the  plea  which  was  sworn  to 
can  be  now  treated  as  an  affidavit,  as  the  parties  took  issue  on 
on  it  and  testimony,  and  the  appellant  has  not  been  prejudiced 
by  the  irregular  proceedings  and  trial  on  said  plea,  as  such  the 
decree  will  not  now  be  reversed  for  such  irregularities,  substan- 
tial justice  having  been  done  between  the  parties. 

In  the  case  of  Jones  vs.  Degge,  84  Va.,  685,  decided  April  5, 
1888,  it  was  held :  Where  defendant  has  taken  depositions  as  if 


Citations  to  the  Code  of  Virginia.  849 

there  had  been  a  replicatiorr,  the  decree  shall  not  be  reversed 
for  want  of  a  replication. 

Section  3451. 

In  the  case  of  Erwin  vs.  Vint,  6  Munf.,  267,  decided  January 
18,  1819,  it  was  held:  A  final  decree  by  default  may  be  set 
aside  at  a  subsequent  term  for  good  cause  shown,  in  a  case 
where  relief  cannot  be  given  by  bill  of  review,  or  bill  to  impeach 
the  decree  for  fraud  in  obtaining  it. 

In  this  case  circumstances  shown  were  that  the  defendant 
against  whom  the  decree  was  rendered  was  prevented  by  mis- 
take and  accident  from  filing  his  answer,  and  that,  in  fact,  his 
title  was  good  to  the  land  in  controversy. 

In  the  case  of  Richardson^ s  Executor  vs.  Jones,  12  Grat.,  53, 
decided  January  29,  1855,  it  was  held :  A  judgment  by  confes- 
sion entered  by  mistake  of  the  clerk  instead  of  a  judgment  7iil 
dicit  cannot  be  corrected  at  the  next  term  of  the  court. 

In  the  case  of  Davis  {Sheriff)  vs.  The  Commonwealth,  16 
Grat.,  134,  decided  March  5,  1861,  it  was  held:  If  a  party  ob- 
tains a  supersedeas  to  a  judgment  by  default,  before  applying  to 
the  court  in  which  the  judgment  was  rendered,  or  to  the  judge 
thereof,  to  con-ect  the  eiTors  of  which  he  complains,  his  super- 
sedeas will  be  dismissed  as  improvidently  awarded. 

In  the  case  of  Ballard  et  als.  vs.  ^\'hitlock,  18  Grat.,  235,  de- 
cided January,  1867,  it  was  held :  A  judgment  and  an  award  of 
execution  upon  a  forfeited  forthcoming  bond  having  been  en- 
tered by  default  upon  a  day  prior  to  that  to  which  the  notice 
was  given,  the  court  in  which  the  judgment  and  award  of  exe- 
cution was  rendered  has  jurisdiction  on  the  motion  of  the 
plaintiff  to  set  aside  the  judgment  and  to  quash  the  execution, 
upon  reasonable 'notice  to  the  defendants.  The  plaintiff  having 
given  a  second  notice  to  the  obligors  in  a  forthcoming  bond  for 
a  judgment  and  an  award  of  execution  thereon,  and  they  ap- 
pearing and  objecting  to  the  rendering  of  the  judgment  and  the 
award  of  execution  asked,  the  court  may,  at  the  same  time, 
quash  the  first  judgment  and  execution,  and  render  another 
judgment  and  award  of  execution  on  the  bond ;  and  the  obligors 
being  present  by  their  counsel,  they  had  reasonable  notice  of 
the  motion  to  quash. 

When  a  judgment  is  set  aside,  the  execution  which  has  is- 
sued upon  it  falls  with  it,  without  an  express  order  to  quash  the 
execution. 

I^In  the  case  of  Ragland  &  Co.  vs.  Butler,  18  Grat.,  323,  de- 
cided January,  1868,  it  was  held :  The  court  having  refused  to 
give  an  insti-uction  to  the  jury  asked  for  by  the  defendant,  that 
the  plaintiff  must  prove  the  offer  to  deliver  merchantable  lum- 
ber cut  from  the  merchantable  timber  upon  the  land,  etc.,  and 
54 


850  Citations  to  the  Code  op  Virginia. 

afterwards  having  instructed  the  jufy  that  if  they  believed  that 
the  plaintiff  cut  from  the  land,  etc.,  merchantable  pine  timber, 
and  sawed  it  into  lumber,  without  saying  that  the  lumber  must 
be  merchantable,  this  instruction,  after  the  refusal  of  the  first, 
was  calculated  to  mislead  the  jury,  and  the  judgment  will  be 
reversed. 

In  the  case  of  Goolsby,  etc.,  vs.  St.  John,  25  Grat.,  146,  decid- 
ed June,  1874.  In  1866  S.  sues  G.  &  R.,  partners,  in  debt.  The 
sheriff  returns  on  the  process,  "  Executed  on  G.  by  leaving  copy 
at  his  house  with  sister,  and  on  R.  by  leaving  copy  at  his  house 
with  wife."  On  his  return  there  is  an  office-judgment  confirmed. 
The  stay  law  prevents  an  execution  on  this  judgment,  but  there 
is  a  judgment  upon  notice  for  a  year's  interest  upon  this  judg- 
ment, in  1867,  and  also  in  1868.  In  1870  execution  is  issued 
on  the  judgment,  when  G.  &  R.  enjoin  it  on  the  ground  that 
the  credit  of  $100  endorsed  on  the  note  should  have  been  $600, 
and  that  the  process  was  not  properly  served,  and  they  had  no 
notice  of  the  suit.  S.  demurs  to  the  bill  for  want  of  equity. 
Held:  G.  &  R.  having  had  notice  of  the  judgment  within  the 
time  limited  for  a  motion  to  quash  it,  they  had  a  remedy  at  law 
by  motion  to  quash  the  sheriff's  return,  and  therefore  they  are 
not  entitled  to  relief  in  equity.  The  judgment  is  a  judgment  by 
default  in  the  sense  of  the  statute. 

In  this  case,  in  September,  1871,  the  court  made  a  decree 
perpetuating  the  injunction,  setting  aside  the  judgment,  and  re- 
manding the  cause  to  the  rules.  In  March,  1872,  S.,  by  leave 
of  the  court,  filed  a  bill  of  review  for  errors  apparent  in  the  de- 
cree ;  and  on  the  2d  of  September,  1872,  the  court  made  a  de- 
cree in  the  bill- of -re  view  case,  reversing  and  annulling  the  de- 
cree ;  and  on  the  same  day  the  original  case  of  G.  &  R.  against 
S.  was  reinstated  on  the  docket;  and,  on  the  'motion  of  S.,  it 
was  decreed  that  the  injunction  be  dissolved.  Held :  It  was  a 
proper  case  for  a  bill  of  review.  The  court  should  not  only 
have  dissolved  the  injunction,  but  should  have  dismissed  the 
original  bill.  The  bill  of  review  is  a  continuance  of  the  original 
suit,  and  there  should  not  have  been  two  decrees,  but  the  whole 
should  have  been  embraced  in  one  decree,  and  the  appellate 
court  will  so  regard  them.  If  the  case  had  not  been  a  proper 
one  for  a  bill  of  review,  still,  an  appeal  from  that  decree  brings 
up  the  whole  case,  and  the  appellate  court  will  go  back  to  the 
first  error,  and  reverse  the  decree  of  September,  1871. 

In  the  case  of  Kendrick  et  als.  vs.  Whitney  et  als.,  28  Grat., 
646,  decided  July,  1877,  it  was  held :  There  is  no  statutory  bar 
to  the  time  within  which  a  petition  may  be  filed  to  correct  error 
in  an  interlocutory  decree.  Whether,  in  such  a  case,  a  rehear- 
ing shall  be  granted,  depends  upon  the  sound  discretion  of  the 
court  upon  all  the  circumstances  of  the  case.     The  motion  to 


] 


Citations  to  the  Code  of  Virginia.  851 

correct  error  in  a  judgment  or  decree  by  default,  given  by  statute, 
is  barred  after  the  lapse  of  five  years  from  the  date  of  the  judg- 
ment or  decree.  That  statutory  remedy  is,  however,  cumula- 
tive, and  has  not  superseded  or  abolished  petitions  for  re- 
hearing, which  may  still  be  had,  according  to  the  course  of 
equity,  in  the  same  manner  as  before  the  enactment  of  that 
statute. 

Though  the  motion  here,  if  treated  as  made  under  the  statute, 
is  barred  by  the  lapse  of  time,  still,  inasmuch  as  the  notice  on 
which  that  motion  was  founded  was  signed  by  counsel,  was 
served  upon  all  the  parties  in  interest,  and  was  regularly  filed, 
and  contained  all  the  requisites  of  a  petition  for  a  rehearing,  it 
will  be  treated  as  a  petition  for  a  rehearing,  and  relief  given  ac- 
cordingly. 

In  the  case  of  Dillard  vs.  Thornton,  29  Grat.,  392,  decided 
November,  1877.  On  September  30,  1867,  a  summons  in  debt 
on  a  single  bill  was  sued  out,  returnable  to  the  succeeding  Octo- 
ber rules,  to  which  rules  it  was  returned  executed  on  the  3d  of 
October ;  and  the  plaintiff  filed  his  declaration ;  and  the  defend- 
ant not  appearing,  a  conditional  judgment  was  entered  against 
him,  which  was  confirmed  at  the  succeeding  rules  held  October 
28,  1867,  and  final  judgment  was  entered  against  the  defendant 
on  the  last  day  of  the  succeeding  term  of  the  circuit  court,  which 
was  October  31,  1867,  which  was  less  than  one  month  after  the 
service  of  the  process  on  the  defendant.  Held :  The  entry  of 
final  judgment  against  the  defendant  within  one  month  after  he 
was  served  with  process  was  erroneous. 

According  to  the  true  construction  of  our  statutes,  where  less 
than  one  month  has  elapsed  between  the  service  of  process  and 
the  end  of  the  succeeding  term,  the  conditional  judgment  will 
become  final  at  the  term  next  succeeding  the  expiration  of  one 
month  after  the  service  of  process. 

The  aforesaid  judgment  of  October  31,  1867,  having  been  set 
aside  in  the  court  below  on  the  motion  of  the  defendant,  the 
court  should  have  reinstated  the  cause  upon  the  docket,  with 
liberty  to  the  defendant  to  plead,  and  to  set  aside  the  office- 
judgment  upon  the  usual  terms,  the  said  judgment  to  become 
final  in  case  of  his  failure  to  set  it  aside. 

Where  under  such  judgment  a  -fi.  fa,  is  issued,  and  there  is  a 
proceeding  by  suggestion  against  persons  indebted  to  the  de- 
fendant, such  defendant  may,  upon  proper  notice,  appear  in  such 
proceeding  and  have  the  judgment  vacated,  and  all  proceedings 
thereunder  quashed. 

A  notice  to  reverse  or  correct  a  judgment  by  default,  or  to 
quash  an  execution,  need  not  be  in  writing ;  all  that  is  requisite 
is,  that  there  should  be  a  reasonable  notice. 

It  is  too  late  to  make  the  objection  in  the  appellate  court  that 


852  Citations  to  the  Code  op  Virginia. 

the  notice  was  insufficient,  when  the  parties  appeared  and  made 
no  such  objection  in  the  court  below. 

The  court  below  having  vacated  the  judgment  of  October  31,, 
1867,  upon  a  motion  of  the  defendant,  where  all  parties  ap- 
peared by  their  counsel,  it  had  no  jurisdiction  to  correct  it& 
action  in  that  regard,  but  the  proper  remedy  was  by  appeal. 

In  the  case  oi  DilliarcCs  Adtninistrator  vs.  Dilliard  et  als.,  77 
Va.,  820,  decided  October  11,  1883,  it  was  held:  Under  Code 
1873,  Chapter  177,  Section  5,  upon  notice  to  the  opposite  party, 
his  agent  or  attorney-at-law,  or,  in  fact,  the  court  wherein  the 
decree  is  rendered,  may,  on  motion,  correct  such  decree  as  to 
any  clerical  error  therein,  where  (as  in  the  case  at  bar)  there  is 
sufficient  in  the  record  to  enable  the  court  to  safely  amend  the 
same. 

In  the  case  of  /Saunders  vs.  Griggs's  Administrator  et  als.,  81 
Va.,  506,  decided  March  11,  1886,  it  was  held :  The  notice  need 
not  specify  the  errors  for  which  the  court  is  asked  to  correct  or 
reverse  its  judgment  by  default,  or  decree  in  bill  taken  for  con- 
fessed. 

In  the  case  of  Stotz  vs.  Collins,  83  Va.,  423,  decided  June  16,. 
1887.  Where  the  defendant  moves  the  judge  in  vacation  to 
reverse  a  judgment  by  default  upon  a  defective  return  of  a  sub- 
stituted service  of  the  summons,  and  to  remand  the  case  for 
trial.  Held :  The  court  may  allow  the  sheriff  to  amend  his  re- 
tiu'n  so  as  to  show  a  proper  service,  and  dismiss  the  defendant's 
motion. 

In  the  case  of  Thompson  vs.  Carpenter,  88  Va.,  702,  decided 
January  28,  1892.  A  county  court,  upon  the  merits,  refused  to 
open  a  road.  The  circuit  court  reversed  it  in  1889,  remanded 
the  case  and  gave  costs.  Afterwards  circuit  court  set  aside  its 
previous  order,  and  later,  in  October,  1890,  made  an  order  re- 
versing the  county  court's  order,  and  directing  the  road  to  be 
opened.  Held:  The  last  order  of  the  circuit  court  was  errone- 
ous, it  being  without  jurisdiction  over  the  case  after  its  final 
order  of  1889. 

This  section  applies  only  to  judgments  by  default  and  to 
decrees  on  bills  taken  for  confessed,  and  to  cases  of  mistake  or 
misrecital,  or  miscalculation,  for  which  no  appeal  lies  to  this 
court. 

CHAPTEE  CLXX. 

In  the  case  of  Moran  vs.  Johnston,  26  Grat.,  108,  decided 
April  1,  1875,  it  was  held:  After  a  decree  for  the  sale  of  real 
estate  to  satisfy  creditors  having  liens  thereon,  and  an  appeal 
from  that  decree  by  the  debtor,  the  court  below,  in  which  the 
suit  was  pending,  may  appoint  a  receiver  to  take  possession  of 
the  property  and  rent  it  out,  and  collect  the  rents  until  the 
further  order  of  the  court,  etc. 


^ 


Citations  to  the  Code  of  Virginia.  853 

In  the  case  of  Adkins  vs.  Edwards,  83  Va.,  316,  decided 
May  5,  1887,  it  was  held :  After  decree  to  sell  real  estate,  and 
appeal  from  that  decree,  the  court  below  may  appoint  receiver 
to  rent  out  the  real  estate. 

Section  3453. 

In  the  case  of  Gryrnes's  Administrators  vs.  Crrym.es,  1  H.  &  M., 
404,  decided  July  10,  1807,  it  was  held :  An  appeal  or  superse- 
deas to  a  judgment  ought  not  to  be  granted  to  any  person  not 
appearing  to  be  interested  in  the  matter  in  controversy. 

In  the  case  of  Coghill  vs.  Coghill,  2  H.  &  M.,  467,  decided 
May  12,  1808,  it  was  held :  In  a  contest  about  a  will,  a  person 
who  was  not  a  party  in  the  county  court  may,  by  becoming  in- 
terested after  an  appeal  to  the  district  court,  be  admitted  a  party 
there  and  carry  up  the  cause  to  the  court  of  appeals,  but  on  re- 
versing the  judgment  of  the  district  court,  and  affirming  that  of  the 
county  court,  such  party  can  only  recover  the  costs  in  the  dis- 
trict court. 

In  the  case  of  Wingfleld  vs.  Crenshaw,  3  H.  &  M.,  245,  decided 
November  9,  1808,  it  was  held:  A  supersedeas  is  the  proper 
remedy  only  where  the  error  is  apparent  on  the  face  of  the  pro- 
ceedings, and  where  the  person  seeking  to  reverse  the  judgment 
is  a  party  in  the  court  below. 

In  the  case  of  Bohn  vs.  Sheppard,  4  Munf.,  403,  decided  Jan- 
uary 26,  1815,  it  was  held :  Although  in  controversies  concern- 
ing mills,  roads,  the  probate  of  wills,  and  granting  adminis- 
trations, the  superior  court  of  law,  to  which  an  appeal  is  taken 
from  the  county  or  corporation  court,  may  hear  new  evidence 
upon  questions  submitted  to  its  revisal  by  the  record,  it  ought 
not  to  receive  any  evidence  but  that  of  the  record  itself  to  prove 
what  questions  were  in  fact  tried  in  the  court  below. 

The  reference  to  1  Eob.,  263,  is  an  error. 

The  reference  to  3  Grat ,  468,  is  an  error. 

In  the  case  of  Fairfax  vs.  Fairfax  {Executors),  7  Grat.,  36,  de- 
cided May  11,  1850,  it  was  held:  To  the  judgment  of  a  county 
court  refusing  to  permit  a  person  named  as  executor  in  a  will 
to  qualify  as  such  without  giving  security,  an  appeal  demand- 
able  as  of  right  lies  to  the  circuit  court. 

In  the  case  of  Seuiter  vs.  Pugh,  9  Grat.,  260,  decided  August 
24,  1852,  it  was  held :  An  appeal  to  the  circuit  court  is  demand- 
able  as  of  right  from  an  order  of  the  county  court  discontinuing 
a  public  road. 

In  the  case  of  Jeter  vs.  Board  et  als.,  27  Grat.,  910,  decided 
December  7,  1876,  it  was  held :  There  may  be  an  appeal  as  of 
right  from  an  interlocutory  order  of  a  county  court  in  a  contro- 
versy concerning  the  establishment  of  a  road. 

In  the  case  of  Neale  vs.  Farinholt,  79  Va.,  64,  decided  April 


854  Citations  to  the  Code  op  Yirginia. 

24,  1884,  it  was  held :  Judgments  of  courts  of  competent  juris- 
diction are  always  presumed  to  be  right  until  contrary  is  shown ; 
and  in  appellate  court  one  aUeging  error  in  court  below  must 
show  it  in  the  record  in  the  regular  way,  else  the  presumption 
of  correctness  must  prevail. 

Where  petition  of  privilege  to  erect  wharf,  etc.,  is  contested 
and  dismissed  by  the  county  court,  petitioner  may  appeal  as  of 
right  and  give  bond  during  the  term.  Then  the  petition  is 
heard  de  novo  on  extrinsic  testimony  in  the  circuit  court.  But 
if  petitioner  obtains  writ  of  error,  judgment  of  county  court 
must  be  reviewed  on  the  record ;  and  if  there  has  been  taken  to 
the  rulings  of  the  court  below  no  bills  of  exceptions  spreading 
the  evidence  and  points  decided  on  the  record,  the  judgment 
wUl  be  presumed  to  be  right,  and  will  be  affirmed.  And  so  in 
this  court  quod  judgment  of  circuit  court,  except  that  appeals  to 
the  former  from  the  latter  are  always  appeals  for  errors  which 
must  appear  in  the  record.  But  when  petitioner  goes  to  circuit 
court  on  writ  of  error,  and  circuit  court  hearing  petition  on  ex- 
trinsic evidence  reverses  judgment  of  county  court,  and  grants 
the  prayer  of  the  petition,  and  the  case  comes  to  this  court  with- 
out exceptions,  spreading  the  evidence  and  points  decided  on 
the  record,  and  no  error  appears  in  the  record  of  the  county 
court,  this  court  will  reverse  the  judgment  of  the  circuit  court 
and  affirm  that  of  the  county  court. 

In  the  case  of  Leighton  vs.  Maury,  76  Va.,  865. 

Construction  of  Statutes. — Liquor  Licenses. — County  Courts. 
The  object  of  the  statute.  Acts  1879-'80,  p.  148,  was  to  depart 
from  the  former  laws  on  the  subject  of  licenses  to  sell  ardent 
spirits,  as  construed  by  this  court  in  Yeager's  case,  11  Grat.,  655, 
where  it  was  held  that  the  county  courts  had  unlimited  discre- 
tion on  the  subject,  and  that  their  decisions  were  not  liable  to 
review  by  any  appellate  tribunal.  The  present  statute  is  man- 
datory, and  the  right  of  appeal  is  to  the  circuit  court,  where  it  is 
heard  de  novo. 

In  the  case  of  Ailstock  vs.  Page  et  als.,  11  Va.,  386,  decided 
April  19,  1883.  The  purpose  of  the  legislature  in  framing  the 
act  of  March  3,  1880,  was  to  require  the  county  courts  to  grant 
a  license  to  sell  liquor  to  every  applicant  who  brought  his  case 
within  the  requirements  of  the  law.  The  purpose  and  effect  of 
the  change  by  the  legislature  by  its  act  of  March  6,  1882,  of 
the  word  "shall"  to  the  word  "may,"  was  to  conform  the  act  of 
March  3,  1880,  so  amended,  to  the  law  in  this  respect,  when  the 
case  of  French  vs.  IS'oel,  22  Grat.,  454,  was  decided,  and  to  so 
leave  it  discretionary  with  county  courts  to  grant  or  refuse  such 
licenses.  This,  however,  is  a  sound  legal  discretion,  subject  to 
the  appeal  specilically  allowed  by  the  statute  to  the  applicant. 

Before  these  acts  of  1880  and  1882,  there  was  from  the  de- 


Citations  to  the  Code  of  Virginia.  855 

cisions  of  county  courts  granting  or  refusing  licenses  to  sell 
liquor,  under  Yaager's  case,  11  Grat.,  655,  and  French  vs.  Noel, 
supra,  no  appeal  allowed  either  applicant  or  contestant.  Those 
acts  give  to  the  applicant  an  appeal  to  the  circuit  court  only. 
The  failure  to  give  the  appeal  to  others  must  be  construed  as 
conclusive  evidence  of  a  purpose  to  withhold  the  right  of  ap- 
peal from  all  but  the  applicant,  and  the  contestant  has  no  ap- 
peal whatever.  So  far  as  this  court  in  Leiglitons  case  reached 
a  different  conclusion  on  the  question  of  the  right  of  appeal 
fi"om  judgments  of  county  courts  on  applications  for  license  to 
sell  liquor,  its  decision  is  overruled. 

A.  applied  to  a  county  court  of  R.  for  license  to  sell,  by  retail, 
liquor  at  G.  P.  opposed.  By  the  evidence  the  court  was  fully 
satisfied  that  A.  brought  this  case  within  the  requirements  of 
the  law,  and  granted  the  license.  P.  excepted.  The  court  cer- 
tified the  evidence.  P.  obtained  from  the  circuit  judge  a  writ  of 
error  and  supersedeas.  On  petition  of  A.  to  this  court  for  a  writ 
of  prohibition  to  the  circuit  court,  held :  The  circuit  court  has 
no  jurisdiction  to  award  a  writ  of  error  and  supersedeas  in  this 
case.  The  writ  of  prohibition  must  be  awarded  so  that  the 
judgment  of  the  county  court  will  remain  as  if  no  writ  of  error 
and  supersedeas  had  been  awarded. 

Ex  parte  Lester,  77  Va.,  663,  decided  September  20,  1883. 
Act  of  March  6,  1882,  amending  act  of  March  3,  1880,  and  sub- 
stituting "may"  for  "shall,"  was  not  designed  to  remit  applica- 
tions to  sell  hquor  to  the  court's  arbitrary  discretion.  The 
words  "may  grant  the  license"  mean  the  court  must  grant  it  in 
a  proper  ca^e. 

Where  statute  declares  a  court  may  do  a  judicial  act,  the  word 
"  may  "  must  be  construed  as  mandatory  when  a  proper  occasion 
for  doing  the  act  arises.  To  applicant  denied  liquor  license  by 
the  act  of  March  6,  1882,  there  is  given  an  appeal  of  right  to 
the  circuit  court.  Under  Code  1873,  Chapter  178,  Section  2, 
he  may,  upon  the  bill  of  exceptions  taken  at  the  trial,  apply  to 
the  circuit  court  for  a  writ  of  error  and  supersedeas.  Of  his 
two  remedies  he  may  resort  to  either,  and  if  the  circuit  court 
also  erroneously  refuse  the  license,  its  decision  is  reviewable 
by  the  court  upon  appeal  or  writ  of  error  and  supersedeas  as  in 
other  cases.  The  applicant  is  a  party  directly  interested  in  the 
decision  refusing  the  license,  and  comes  within  the  letter  of 
Code  1873,  Chapter  178,  Section  2.     Not  so  with  contestant. 

Ex  parte  Yearjer,  11  Grat.,  655,  was  founded  on  the  law  of 
1849,  which  gave  county  courts  arlDitrary  discretion  as  to  liquor 
licenses ;  French  vs.  Noel,  22  Grat.,  454,  on  law  of  1870,  was 
based  on  the  same  ground;  Leighton  vs.  Maury,  76  Va.,  865,  on 
the  law  of  1880,  construing  the  law  as  giving  those  courts  a 
legal  discretion,  reviewable  upon  appeal  or  error  upon  petition 


856  Citations  to  the  Code  op  Virginia. 

of  either  applicant  or  contestant;  Ailstock  vs.  Page,  ante,  p. 
386,  on  law  of  1880,  amended  by  act  of  March  6,  1882,  over- 
rules Leighton  vs.  Maiiry,  so  far  as  latter  allows  right  of  appeal 
or  error  to  the  contestant,  but  decides  nothing  concerning  the 
applicant. 

L.  applied  to  county  court  of  M.  for  license  to  sell  liquor. 
The  court  certified  that  the  applicant  proved  that  he  was  a  fit 
person,  and  that  his  place  of  business  was  suitable.  L.  ap- 
plied to  the  circuit  court  for  a  writ  of  error.  He  denied  the 
writ  of  error,  and  enflltorsed  the  petition  as  follows:  "The  words 
of  the  statute  (1882)  only  apply  to  an  applicant,  and  only  allow 
him  right  of  appeal  during  the  term  at  which  the  refusal  to 
allow  his  application  is  entered.  I  therefore  decline  to  grant  as 
asked  for  in  the  petition."     Held  (by  a  majority  of  the  court) : 

1.  The  applicant  brought  himself  within  the  requirements  of 
the  law,  and  was  entitled  to  the  license  applied  for. 

2.  The  right  of  appeal  upon  errors  to  the  circuit  court  was 
not  taken  away  by  the  statute,  and  the  applicant  was  entitled, 
upon  the  facts  manifested  by  the  record,  to  have  the  judgment 
refusing  him  the  license  reviewed  and  reversed  by  the  circuit 
court.  Held  (by  Lewis,  P.,  and  Hinton,  J) :  From  the  judg- 
ment of  the  county  court  refusing  license  under  the  act  of  March 
3,  1880,  amended  by  the  act  of  March  6,  1882,  the  applicant  is 
entitled,  during  the  term  at  which  the  refusal  is  entered,  to  take 
an  appeal  of  right  to  the  circuit  court,  and  no  further,  and  such 
appeal  is  his  only  remedy. 

In  Haddox  vs.  County  of  Clarke,  79  Va.,  677,  the  above  cases 
were  affirmed  and  approved.  * 

Section  3454. 

In  the  case  of  Lomax  vs.  Picot,  2  Eand.,  247,  decided  Febru- 
ary 7,  1824,  it  was  held :  An  appeal  will  lie  from  an  order  of 
the  chancellor  overruling  a  motion  to  dissolve  an  injunction, 
when  the  motion  has  been  overruled,  on  the  ground  that  the 
plaintiff  in  equity  is  entitled  to  relief  on  the  merits,  and  fixing 
the  principle  on  which  the  cause  depends,  or  where  it  is  neces- 
sary to  avoid  expense  or  delay. 

In  the  case  of  Talley  vs.  Tyree,  2  Rob.,  500,  decided  Novem- 
ber, 1843,  it  was  held :  An  appeal  lies  to  the  court  of  appeals 
from  an  order  of  a  circuit  court  overruling  a  motion  to  dissolve 
an  injunction  which  was  improvidently  granted. 

In  the  case  of  Reed  vs.  Cline's  Heirs,  9  Grat.,  136,  decided 
August  2,  1852,  it  was  held :  There  may  be  an  appeal  fi*om  a 
decree  directing  an  issue,  when  the  decree  impliedly  involves  a 
settlement  of  the  principles  of  the  cause. 

In  the  case  of  Baltimore  <&  Ohio  Railroad  Company  vs.  City 
of  Wheeling,  13  Grat.,  40,  decided  November  23,  1855,  it  was 
held :  A  proceeding  for  a  contempt  in  disobeying  an  injunction 


Citations  to  the  Code  of  Virginia.  857 

is  not  an  order  in  the  cause,  but  is  in  the  nature  of  a  criminal 
proceeding,  and  the  judgment  in  such  a  proceeding  can  only  be 
reviewed  by  a  superior  tribunal  by  writ  of  error,  and  not  always 
in  that  way. 

An  order  overruling  a  motion  to  dissolve  an  injunction  may 
be  appealed  from  if  the  principles  of  the  cause  are  thereby  ad- 
judicated, and  this  though  such  an  order  is  made  in  vacation. 

The  court,  for  good  cause  shown,  may  overrule  a  motion  to 
dissolve  an  injunction  and  continue  it  to  the  hearing,  without 
adjudicating  the  principles  of  the  cause ;  in  which  case  no  ap- 
peal will  lie  from  the  order.  When  the  principles  of  the  cause 
are  adjudicated  by  such  order,  an  appeal  may  be  refused  if  the 
court  or  judge  to  whom  the  petition  of  appeal  is  presented 
deems  it  most  proper  that  the  cause  should  be  proceeded  in 
farther  in  the  court  below  before  an  appeal  is  allowed  therein ; 
and  if,  in  such  case,  an  appeal  is  allowed,  it  may  be  dismissed 
3,a  prematurely  allowed. 

In  a  case  which  is  purely  an  injunction  cause,  the  parties 
having  had  time  to  prepare  the  case,  and  having  taken  testi- 
mony to  support  their  respective  pretensions,  and  it  not  being 
probable  that  any  other  facts  can  be  brought  into  the  cause 
which  will  affect  its  principles,  a  motion  was  made  in  vacation 
to  dissolve  the  injunction,  on  the  ground  that  it  was  improvi- 
dently  awarded,  and  upon  the  cause  as  it  then  stood.  The 
hearing  of  the  motion  was  objected  to, 

1.  Because  a  foreign  corporation,  which  was  a  party,  had  not 
answered. 

2.  Because  exceptions  had  been  filed  to  the  sufficiency  of  the 
answer  of  the  defendants  which  were  still  pending  and  unde- 
termined. 

3.  Because  the  answer  of  the  defendant,  a  corporation,  was 
not  verified  by  affidavit. 

The  judge  heard  the  motion,  but  refused  to  dissolve  the  in- 
junction, and  continued  it  until  further  order  or  decree.  Held : 
The  refusal  of  the  judge  to  dissolve  the  injunction  adjudicated 
the  principles  of  the  cause  to  the  extent  that  the  injunction  had 
not  been  improvidently  awarded,  and  that  the  cause  as  it  then 
stood  ought  to  be  continued.  It  is,  therefore,  such  an  order  as 
may  be  appealed  from,  and  it  is  a  proper  case  for  appeal  at 
once. 

In  the  case  of  Richmond  c&  York  River  Railroad  Coinpany 
yB.  Wicker,  13  Grat.,  375,  decided  May  24,  1856,  it  was  held: 
An  appeal  may  be  taken  from  an  order  made  in  vacation,  over- 
ruling a  motion  to  dissolve  an  injunction,  when  the  principles 
of  the  cause  are  thereby  adjudicated. 

In  the  case  of  Gooefs  Administratrix  vs.  Bradford,  28  Grat., 
^09,  decided  May  1,  1877,  it  was  held:  A  decree  which  over- 


858  Citations  to  the  Code  of  Vieginia. 

rules  certain  exceptions  to  a  commissioner's  report,  and  confirms 
the  report  as  to  the  questions  involved  in  these  exceptions,  is  a 
decree  settling  the  principles  of  the  cause  as  to  these  questions,. 
from  which  the  party  excepting  may  appeal,  although  the  report 
is  recommitted  to  the  commissioner  as  to  other  matters  involved 
in  other  exceptions. 

In  the  case  of  Elder's  Executcrrs  et  als.  vs.  Harris  et  als.,  75 
Va.,  68,  decided  December  2,  1880.  The  court  of  appeals  has 
no  jurisdiction  to  entertain  an  appeal  from  an  interlocutory 
decree,  except  as  it  is  given  by  the  statute. 

In  a  pell  ding  cause  a  commissioner  is  directed  to  take  an 
account  of  certain  personal  property  and  rents  of  lands,  the 
report  is  returned  and  excepted  to,  and  the  court  without  de- 
ciding upon  any  question  upon  the  report  directs  a  jury  to  try 
an  issue  of  fact  as  to  what  was  the  value  of  the  personal  pro- 
perty. Held :  The  decree  decides  no  principle  in  the  cause,  and 
an  appeal  allowed  from  it  will  be  dismissed  as  improvidently 
awarded. 

In  the  case  of  Kakii  vs.  Kerngood,  80  Va.,  342,  decided  March 
19,  1885,  it  was  held :  From  an  order  overruling  an  injunction 
and  adjudicating  the  principles  of  the  cause,  an  appeal  lies. 

Where  a  deed  conveys  property  alleged  therein  to  be  worth  over 
five  hundred  dollars,  and  is  assailed  as  fraudulent  by  a  creditor 
whose  debt  is  less  than  five  hundred  dollars  as  between  the 
grantee  and  the  assailing  creditor,  the  matter  in  controversy  is 
the  value  of  the  property,  and  not  the  amount  of  the  debt ;  and 
in  the  absence  of  proof  to  the  contrary  the  alleged  must  be 
deemed  the  actual  value  of  the  property. 

When  on  bill  and  answer  denying  all  equity  in  the  bill  there 
is  a  motion  to  dissolve  an  injunction,  it  is  customary  to  dissolve,, 
but  for  good  cause  the  motion  may  be  overruled  and  the  injunc- 
tion continued  imtil  the  hearing,  without  any  adjudication  of  the 
principles  of  the  cause. 

In  the  case  of  Wells  vs.  Jackson,  3  Munf.,  458,  decided  March. 
26,  1814,  it  was  held :  The  plaintiff  cannot  appeal  from  a  judg- 
ment in  favor  of  all  the  defendants  except  one  in  a  joint  action 
of  trespass,  until  the  suit  has  been  abated,  dismissed,  or  decided 
as  to  that  one. 

In  the  case  of  Cowling  vs.  The  Justices  of  Nansemond  Cotmtyy 
6  Band.,  349,  decided  May,  1828,  it  was  held :  Though  a  judg- 
ment of  a  superior  court  of  law,  reversing  a  judgment  of  a 
county  court,  and  directing  other  pleadings  in  the  cause,  be  in- 
terlocutory iu  its  character,  yet  the  finality  of  the  judgment  in  the 
county  court  imparts  its  character  to  the  judgment  of  the  supe- 
rior court,  so  as  to  authorize  an  appeal  to  the  court  of  appeals. 

In  the  case  of  Janey  vs.  Blake's  Adrrdnistrator,  8  Leigh,  88, 
decided  February,  1837.     On  a  supersedeas  to  a  judgment  of  a 


Citations  to  the  Code  of  Virginia.  "     859 

county  court,  the  circuit  court  reverses  the  judgment  with  costs, 
but  omits  to  give  such  judgment  as  the  county  court  ought  to 
have  given,  and  retains  the  cause.  Held :  This  judgment  of  the 
circuit  court  is  to  be  regarded  as  its  final  judgment  in  its  appel- 
late character,  and  a  supersedeas  will  lie  thereto  from  the  court 
of  appeals. 

In  the  case  of  Priddy  <&  Taylor  vs.  Ilartsook,  81  Va.,  67,  de- 
cided October  8,  1885,  it  was  held :  A  rule  in  action  at  law  re- 
quiring plaintiff  to  elect  by  the  next  term  whether  he  will  pro- 
ceed at  law  or  in  chancery  is  not  a  final  judgment,  and  this 
court  has  not  jurisdiction  to  review  it. 

In  the  case  of  Tucker  et  als.  vs.  Sandidge  {Curator),  82  Va., 
532,  decided  November  11,  1886.  In  a  proceeding  at  law  to 
contest  writing  propounded  by  the  executor,  S.,  for  probate,  a 
jury  was  impaneled  to  ascertain  whether  the  paper-writing  was 
the  last  will  and  testament  of  T.  The  verdict  was  that  it  was 
not.  On  motion  of  the  propounder,  the  verdict  was  set  aside 
and  a  new  trial  awarded.  Contestants  appealed.  Held:  The 
appeal  was  improvidently  awarded  and  must  be  dismissed,  and 
the  case  remanded  for  trial  and  final  order. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  107. 

In  the  case  of  Cocke's  Administrator  vs.  Gilpin^  1  Kob.,  20 
(2d  edition,  p.  22.) 

Question  whether  a  decree  was  final  or  interlocutory.  Per 
Baldwin,  J.  Where  the  further  action  of  the  court  in  the  cause 
is  necessary  to  give  completely  the  relief  contemplated  by  the 
court,  there  the  decree  upon  which  the  question  arises  is  to  be 
regarded  not  as  final,  but  interlocutory. 

The  opinion  of  the  Supreme  Court  of  the  United  States  in 
May  vs.  Lavj,  3  Cranch,  179,  that  a  decree  for  a  sale  under  a 
mortgage  is  a  final  decree,  disapproved. 

In  the  case  of  Famey hough  vs.  Dickerson,  2  Rob.,  582,  decided 
December,  1843.  An  executorial  account  being  settled  by  com- 
missioners under  an  order  of  the  court  of  probate,  some  of  the 
legatees  file  exceptions  to  the  account,  and  the  court  overrules 
the  same,  orders  the  account  to  be  recorded,  and  adjudges  the 
exceptors  to  pay  the  executor's  costs.  Held :  This  is  a  final  pro- 
ceeding or  order  within  the  meaning  of  the  statute,  to  which,  on 
the  petition  of  the  exceptors,  a  supersedeas  may  be  awarded. 

In  the  case  of  Arnhrouse's  Heirs  vs.  Keller,  22  Grat.,  769, 
decided  October  28,  769,  it  was  held,  p.  774 :  An  appeal  from 
a  decree  of  the  court  refusing  to  allow  the  bill  of  review  to  be 
filed,  if  the  decree  was  final,  brings  up  for  consideration  the  cor- 
rectness of  the  first  decree,  and  if  the  first  decree  was  interlocu- 
tory, brings  up  the  whole  case. 

If  the  petition  for  an  appeal  is  presented  within  the  period  for 
the  limitations  of  appeals,  it  is  sufficient. 


860  Citations  to  the  Code  op  Vikginia. 

In  the  case  of  RyaviS  Administrators  vs.  McLeod  et  als.,  32 
Grat.,  367,  decided  November  20,  1879,  it  was  held,  pp.  376- 
381 :  A  decree  cannot  be  in  part  final,  and  in  part  interlocutory, 
in  the  same  cause,  for  and  against  the  same  parties  who  remain 
in  court. 

Whenever  a  partial  relief  is  contemplated,  if  anything  remains 
to  be  done  by  the  court  to  make  the  relief  effectual,  the  decree 
is  interlocutory.  When  no  further  action  is  required  the  decree 
is  final. 

In  the  case  of  Rawling's  Executors  et  als.  vs.  Rawling  et  als., 
75  Va.,  76,  decided  December  9,  1880,  it  was  held,  pp.  87-88 : 
In  a  suit  for  the  administration  of  an  estate,  a  decree  which 
settles  the  principles  of  the  case  and  distributes  the  whole  pro- 
perty to  the  parties  entitled,  and  directs  the  payment  of  the 
costs,  leaving  nothing  to  be  done  in  the  cause,  is  a  final  decree, 
though  it  may  possibly  become  necessary  to  resort  to  measures 
to  enforce  it. 

On  a  bill  to  review  a  decree  on  the  ground  of  error  in  law, 
the  errors  must  be  such  as  appear  on  the  face  of  the  decrees, 
orders,  and  proceedings  in  the  cause,  arising  on  facts  either  ad- 
mitted by  the  pleadings  or  stated  as  facts  in  the  decrees.  But 
if  the  errors  be  errors  of  judgment  in  the  determination  of  facts, 
such  errors  can  be  corrected  only  by  appeal. 

In  this  case,  held:  The  decree  was  a  final  decree,  and  the 
errors  sought  to  be  corrected  were  not  errors  of  law  apparent 
in  the  decree,  but  errors,  if  errors,  of  judgment  on  the  deter- 
mination of  fact  on  which  the  decrees  complained  of  are  based. 
If  the  decree  in  this  case  was  interlocutory,  and  the  bill  treated 
as  a  petition  for  a  rehearing,  after  the  long  acquiescence  by  the 
parties  in  the  decrees  settling  the  questions  in  the  cause,  and 
all  the  circumstances  of  the  case,  the  rehearing  should  not  be 
granted. 

In  the  case  of  Jones  vs.  Turner,  81  Va  ,  709,  decided  Febru- 
ary 14,  1886.  A  decree  in  these  words:  "The  plaintiff  failing 
to  prosecute  his  suit,  it  is  ordered  that  the  same  be  dismissed," 
is  a  final  decree.  It  can  only  be  set  aside  by  appeal,  or  by  bill 
of  review,  within  the  periods  limited  by  statute. 

In  the  case  of  JBransford  ( Treasurer)  vs.  Kam  &  Hickson,  87 
Ya.,  242,  decided  December  11,  1890,  it  was  held :  No  writ  of 
error  lies  where  judgment  is  entered  upon  agreement  that  judg- 
ment be  entered  in  accordance  with  the  result  of  another  case. 

In  the  case  of  Ludlow  vs.  City  of  Norfolk,  87  Va.,  319,  de- 
cided January  16,  1891,  it  was  held :  There  must  be  a  degree  of 
finality  about  every  judgment  taken  up  to  be  reviewed  by  ap- 
pellate courts.  A  judgment  appointing  commissioners  to  fix  a 
just  compensation  for  land  proposed  to  be  taken  in  condemna- 
tion proceedings  is  not  final  and  appealable. 


Citations  to  the  Code  op  Virginia.  861 

In  the  case  of  Shamion  vs.  Hanks,  88  Va.,  338,  decided  July 
23,  1891,  it  was  held:  Under  this  section  an  appeal  lies  to  a 
decree  appointing  a  receiver,  whereby  a  change  in  possession 
or  control  of  the  property  is  acquired,  though  made  in  vacation. 

In  the  case  of  Norris  vs.  LaJce  et  als.,  89  Va.,  513,  decided 
January  5,  1893,  it  was  held :  Where  a  decree  decides  that  the 
deed  attacked  by  the  bill  as  fraudulent  ^er  se  is  not  so,  thus 
overruling  one  of  the  grounds  on  which  relief  is  prayed  for  in 
the  bill,  it  adjudicates,  to  a  certain  extent,  the  principles  of  the 
cause,  and  is,  therefore,  an  appealable  order. 

Section  3455. 

In  the  case  of  The  Commonwealth  vs.  Moore^s  AdminutratorSy 
1  Grat.,  294,  decided  December,  1844,  it  was  held :  The  statute 
which  limits  the  right  of  appeal  to  the  court  of  appeals  to  five 
years  applies  to  the  Commonwealth. 

In  the  case  of  Mcintosh  {Treasurer)  vs.  Braden  et  als.,  80  Va., 
217,  decided  February  5,  1885,  it  was  held,  p.  222:  Act  of 
March  12,  1884,  is  unconstitutional  as  far  as  it  confers  upon 
this  court  jurisdiction  in  all  cases  of  coupons  arising  under  act 
of  January  14,  1882,  without  regard  to  the  amount  in  contro- 
versy, being  in  conflict  with  Article  6  of  State  constitution,  fix- 
ing minimum  jurisdictional  amount  in  cases  purely  pecuniary 
at  five  hundred  dollars. 

See  the  references  to  Section  2720. 

In  the  case  of  Carter's  Administrators  vs.  Kelly  {Judge),  28 
Grat.,  787,  decided  August  2,  1877,  it  was  held  :  Where  a  war- 
rant is  brought  before  a  justice  upon  a  claim  exceeding  twenty 
dollars,  and  upon  the  application  of  the  defendant  before  trial 
it  is  removed  to  the  county  court,  an  appeal  lies  to  the  circuit 
court  from  the  judgment  of  the  county  court  in  the  case. 

In  the  case  of  Clark  vs.  Brown,  8  Grat.,  549,  decided  April, 
1852,  it  was  held:  In  an  action  on  a  case  for  an  injury  done  to 
the  plaintiff's  land  by  the  mill-dam  of  the  defendant,  though  the 
freehold  or  franchise  was  drawn  in  question,  yet  if  the  damages 
found  by  the  jury  are  under  two  hundred  dollars,  the  court  of 
appeals  has  no  jurisdiction  of  the  case. 

In  the  case  of  Snoddy  vs.  Haskins,  12  Grat.,  363,  decided  May 
14,  1855,  it  was  held :  The  execution  is  for  less  than  five  hun- 
dred dollars,  but  the  slave  is  allotted  to  the  widow  at  a  valuation 
above  that  sum,  she  having  obtained  an  injunction  to  the  sale 
under  the  execution,  which  is  afterwards  dissolved.  Quwre: 
If  the  supreme  court  of  appeals  has  jurisdiction  in  the  case  ? 

In  the  case  of  Urnharger  and  Wife  et  als.  vs.  Watts  et  als.y  25 
Grat.,  167,  decided  June,  1874,  it  was  held:  A  judgment-cred- 
itor brings  a  suit  in  equity  to  subject  his  debtor's  land  to  satisfy 
his  judgment,  and  other  judgment-creditors  of  the  same  debtor 


862  Citations  to  the  Code  of  Virginia. 

come  into  the  cause  by  their  petitions  to  subject  the  same  land. 
None  of  these  judgments  amount  to  five  hundred  dollars.  Upon 
a  decree  against  them,  dismissing  the  bill,  the  court  of  appeals 
has  no  jurisdiction  to  allow  or  hear  an  appeal  from  the  decree, 
either  on  the  ground  that  the  united  judgments  amount  to  more 
than  five  hundred  dollars,  or  that  the  suit  concerns  the  titles  or 
bounds  of  land.  In  such  a  case  the  decree  is  to  be  considered 
as  several  as  to  each  creditor. 

The  matter  in  controversy  in  reference  to  the  appellate  juris- 
diction of  the  court  of  appeals,  is  that  which  is  the  essence  and 
substance  of  the  judgment,  and  by  which  the  party  may  dis- 
charge himself. 

In  the  case  of  Gage  vs.  Crockett,  27  Grat.,  735,  decided  Sep- 
tember 21,  1876,  it  was  held:  To  give  the  court  of  ajjpeals 
jurisdiction  of  a  cause,  except  in  certain  cases  specified,  the 
judgment  or  decree  must  amount  to  five  hundred  dollars,  prin- 
cipal and  interest,  at  the  date  of  the  judgment  or  decree,  except 
where  the  claim  of  the  plaintiff  is  more  than  that  amount  and 
he  applies  for  the  appeal. 

In  the  case  of  Stuart  vs.  Valley  H.  R.  Co.,  32  Grat.,  146,  decided 
September,  1879.  S.  denies  that  he  was  a  stockholder  in  the 
company,  and  the  controversy  involved  the  validity  of  his  sub- 
scription for  the  whole  of  said  five  shares,  which  was  five  hun- 
dred dollars.  Held :  That  though  the  judgment  against  S.  for 
the  three  hundred  dollars  and  interest  was  less  than  five  hundred 
dollars,  yet  the  subject  in  controversy  was  the  validity  of  the 
subscription  for  the  five  shares,  and  the  court  of  appeals  has 
jurisdiction  to  hear  the  case  upon  appeal. 

In  the  case  of  Campbell  vs.  Srnith.,  32  Grat.,  288,  decided 
September,  1879.  S.  moved  the  court  below  to  quash  an  exe- 
cution issued  against  his  effects  on  a  judgment  recovered  against 
him  by  C,  on  the  ground  that  he  had  paid  it.  The  court  allowed 
a  credit  on  the  execution  to  the  amount  of  four  hundred  and 
twenty  dollars,  and  from  this  judgment  C.  obtained  an  appeal  to 
this  court.  On  the  motion  of  S.  to  dismiss  the  appeal  on  the 
ground  that  the  matter  in  controversy  was  not  as  much  as  five 
hundred  doUars.  Held:  That  the  appeal  being  by  C,  it  is  not 
the  amount  of  the  execution,  but  the  amount  of  the  credit  which 
is  the  matter  in  controversy,  and  this  court  does  not  have  juris- 
diction of  the  casp,  and  the  appeal  is  dismissed. 

In  the  case  of  Harinan  vs.  City  of  Lynchburg^  33  Grat.,  37,  de- 
cided March,  1880,  it  was  held:  The  term  "matter  in  contro- 
versy" as  used  in  reference  to  the  jurisdiction  of  the  court  of  ap- 
peals, in  Section  2,  Article  6,  of  the  Virginia  Constitution, 
means  the  "subject  of  litigation,  the  matter  for  which  suit  is 
brought  and  upon  which  issue  is  joined." 

When  a  plaintiff  seeks  a  revision  of  the  judgment  below,  if 


Citations  to  the  Code  of  Virginia.  863 

lie  claims  in  his  declaration  money  or  property  of  the  value  of 
not  less  than  five  hundred  dollars,  the  court  of  appeals  has  juris- 
diction, although  the  judgment  may  be  for  less,  or  for  the  de- 
fendant. But  where  the  revision  is  sought  by  the  defendant, 
the  amount  of  value  of  the  judgment  at  its  date  determines  the 
jurisdiction.  The  onus  is  upon  the  party  seeking  the  revision  to 
establish  the  jurisdiction  of  the  appellate  court. 

In  the  case  of  Fhik,  Brother  dh  Co.  vs.  Denny  et  ah.,  75  Va., 
663,  decided  September,  1881,  it  was  held :  Every  post-nuptial 
settlement,  when  the  settler  is  indebted,  is,  against  his  credi- 
tors, fraudulent  and  void ;  and  every  settlement  will  be  taken  to 
be  voluntary,  unless  those  claiming  under  it  can  show  that  it  was 
made  for  valuable  consideration. 

In  such  a  case  when  a  bill  charges  that  a  deed  was  voluntary 
and  fraudulent,  the  answer  of  husband  and  wife  denying  the 
fraud  and  setting  up  the  defence  of  valuable  consideration,  is 
not  evidence  for  the  respondents,  but  the  defence  must  be  estab- 
lished by  proof. 

In  the  case  of  BatcheMer  (&  Collins  vs.  Richardson,  75  Va., 
835,  decided  November,  1881,  it  was  held:  Where  on  a  money 
demand  the  difference  between  the  amount  decreed  to  the  ap- 
pellant in  the  court  below  and  the  amount  of  the  claim  asserted 
by  him  in  that  court  is  not  sufficient  to  give  this  court  jurisdic- 
tion, his  appeal  will  be  dismissed.  And  if  the  actual  amount  in 
dispute  does  not  otherwise  appear,  the  court  will  look  to  the 
whole  record  for  the  purpose  of  determining  the  jurisdiction. 

In  the  case  of  Southern  Fertilizing  Co.  vs.  Nelson,  6  Va.  Law 
Journal,  162,  decided  March,  1882,  it  was  held:  The  onus  of 
showing  that  the  appellate  court  has  jurisdiction  of  a  case  is 
always  on  the  appellant  or  plaintiff  in  error. 

Several  creditors  were  seeking  to  enforce  their  executions 
against  property  which  was  adjudged  in  the  circuit  court  not  to 
belong  to  the  judgment-debtor.  One  of  these  creditors  obtained 
a  writ  of  error  to  this  judgment,  but  the  record,  although  show- 
ing that  the  aggregate  amount  of  the  several  executions  levied 
on  the  property  and  held  by  different  plaintiffs  were  more  in 
amount,  exclusive  of  costs,  than  five  hundred  dollars,  and  also 
that  the  property  levied  on  and  claimed  to  be  liable  to  the  levy, 
was  of  greater  value  than  five  hundred  dollars,  yet  it  did  not 
show  that  the  amount  of  the  execution  of  the  plaintiff  in  error 
was  five  hundred  dollars  exclusive  of  costs.     Held :  The  court 

I  has  no  jurisdiction,  and  the  writ  of  error  must  be  dismissed  as 
having  been  improvidently  awarded. 
The  property  levied  on  does  not  constitute  the  "matter  in 
controversy  "  so  as  to  give  the  court  jurisdiction  in  the  case. 
In  the  case  of  Atkinson  (Trustee)  vs.  McCormick  {Trustee)  et 
ids.,  76  Va.,  791. 
1 


864  Citations  to  the  Code  of  Virginia. 

1.  Appeals. — If  a  bill  be  erroneously  dismissed  as  insufficient 
in  law,  a  party  aggrieved  thereby  may,  though  a  defendant  in 
form,  appeal  from  the  decree  of  dismission. 

2.  Idem. — A  trustee  in  an  assignment  for  the  benefit  of  credi- 
tors, as  a  representative  of  the  whole  fund,  may  appeal  if  ag- 
grieved thereby,  though  none  of  the  debts  secured  separately 
amount  to  five  hundred  dollars. 

In  the  case  of  Bitchier  vs.  Metz  et  als.,  11  Va.,  107,  decided 
February  1,  1883.  B.  has  judgment  against  M.  for  $1,689.99. 
M.  has  only  one  tract  of  land,  containing  eighteen  and  a  quar- 
ter acres,  and  worth  $91.25.  After  the  judgment  M.  makes  his^ 
deed,  setting  apart  his  land  as  his  homestead.  The  bond  where- 
on the  judgment  was  founded,  contained  no  waiver  of  the  home- 
stead, and  was  not  for  the  price  of  this  land.  Court  below  dis- 
missed this  bill.     On  appeal,  held : 

1.  To  give  this  court  jurisdiction  of  the  case  under  Constitu- 
tion, Article  6,  Section  2,  "the  matter  in  controversy — that  for 
which  the  suit  is  brought" — the  subject  of  the  litigation,  and 
upon  which  the  issue  is  joined,  must  either  be  of  the  value  of 
five  hundred  dollars,  exclusive  of  costs,  or  concerning  the  title 
of  boundaries  of  land. 

2.  Here  the  suit  was  brought  to  enforce  the  lien  of  the  judg- 
ment upon  the  eighteen  and  a  quarter  acres  owned  by  M.  at  the 
recovery  of  the  judgment,  but  subsequently  conveyed  to  P. 
The  whole  aim,  object,  and  scope  of  the  suit  is  the  value  of  the 
land,  by  payment  whereof  P.  may  discharge  the  land  from  the 
judgment.  Its  value  ascertained  by  the  proceedings  in  the 
cause  is  less  than  five  hundred  dollars. 

3.  The  matter  in  controversy,  as  concerns  the  appellate  juris- 
diction of  this  court,  is  the  value  of  the  land,  and  that  being  less 
than  five  hundred  dollars,  this  court  has  no  jurisdiction. 

4.  This  is  not  a  suit  for  the  land,  and  no  such .  controversy 
"concerning  the  title  or  boundaries  of  land"  as  would  give  this 
court  jurisdiction  can  arise. 

In  the  case  of  Breeding  vs.  Davis  et  als.,  11  Va.,  639  and 
651,  decided  July  26,  1883.  On  the  11th  of  AprU,  1877,  there 
descended  on  E.,  wife  of  C,  real  estate  in  fee.  Issue  had  been 
born  alive  of  their  marriage.  D.,  a  creditor  of  C,  who  was  a 
non-resident,  levied  an  attachment  on  C.'s  interest  in  that  real 
estate,  and  sale  thereof  was  decreed  to  pay  a  debt  of  less  than 
five  hundred  dollars  in  amount.  Before  sale,  C.  and  wife  con- 
veyed the  real  estate  to  B.,  who  conveyed  same  with  general 
warranty  and  covenant  to  quiet  title,  purchase-money  withheld 
until  its  performance,  to  M.;  B.  obtained  an  injunction  to  the 
sale.  Held :  The  controversy  is  not  concerning  the  debt  of  C. 
to  D.  The  question  is,  "Where  is  the  title  to  E.'s  laud  vested?  " 
The  title  to  her  land  is  the  issue.  The  jurisdiction  to  this  court 
is  undoubted. 


Citations  to  the  Code  of  Virginu.  865 

In  the  case  of  Updike's  Administrator  vs.  Lane,  78  Va.,  132, 
decided  December  6,  1883,  it  was  held :  Where  for  debt  of  de- 
cedent there  is  no  decree  in  solido  against  his  personal  repre- 
sentatives, but  severally  against  each  distributee  for  his  propor- 
tion of  the  debt  which  exceeds  five  hundred  dollars,  substantially 
it  is  a  decree  against  the  decedent's  estate,  and  as  it  exceeds  in 
the  aggregate  the  minimum  jurisdictional  sum,  an  appeal  lies 
from  the  decree  in  behalf  of  the  distributees. 

In  the  case  of  Peters  <&  Heed  vs.  Mb  Williams  et  als.,  78  Ya., 
567,  decided  February  7,  1884,  it  was  held :  Where  the  amount 
in  controversy  exceeds  the  minimum  jurisdictional  sum,  this 
court  has  jurisdiction,  though  the  judgment  complained  of  be 
not  in  form  i?i  solido  for  that  amount,  but  be  divided  into  lesser 
sums  payable  to  the  persons  respectively  entitled  thereto.  In 
form  the  judgment  is  several.     In  substance  it  is  i?i  solido. 

In  the  case  of  Cox  vs.  Carr  et  als.,  79  Va.,  28,  decided  April  3, 
1884,  it  was  held,  p.  54 :  When  jurisdiction  depends  upon  the 
amount  in  controversy,  if  plaintiff  in  his  declaration  or  bill 
claims  money  or  property  of  greater  value  than  five  hundred 
dollars,  he  is  entitled  to  his  appeal  or  writ  of  error,  though  judg- 
ment be  for  less. 

Yet  if  the  claim  is  merely  colorable  in  order  to  give  the  court 
jurisdiction,  and  that  was  made  to  appear,  jurisdiction  would  be 
declined,  for  jurisdiction  can  no  more  be  conferred  than  it  can 
be  taken  away  by  improper  devices  of  parties. 

Sum  claimed  in  bill,  with  interest  at  date  of  final  decree,  ex- 
cluding costs,  exceeds  five  hundred  dollars,  and  nothing  appears 
to  show  that  the  sum  claimed  was  fixed  with  the  view  of  acquir- 
ing jurisdiction  in  this  court.  Held:  The  court  has  jurisdiction 
of  the  appeal. 

In  the  case  oiMcCroioell  vs.  Burson,  79  Va.,  290,  decided  Au- 
gust 7,  1884,  it  was  held:  To  give  this  court  jurisdiction,  save  in 
certain  cases,  the  judgment  must  amount  to  five  hundred  dol- 
lars, principal  and  interest,  at  its  date,  except  when  plaintiffs 
demand  exceeds  that  sum,  and  he  applies  for  the  appeal. 

Though  plaintiff's  claim,  except  a  sum  less  than  five  hun- 
dred dollars,  be  admitted  by  defendant  in  an  agreed  statement 
of  facts,  and  the  sum  so  admitted  may  determine  the  jurisdic- 
tion of  this  court,  yet  such  is  not  the  case  where  a  special  ver- 
dict finds  plaintiff's  claim  to  be  less  than  five  hundred  dollars, 
whether  court  below  renders  judgment  for  plaintiff  for  the  sum 
found  by  the  verdict,  or  for  the  defendant. 

In  the  case  of  Smith  et  tcx.  vs.  Jiose?iheim,  79  Va.,  540,  decided 
October  7,  1884,  it  was  held:  The  test  of  jurisdiction  in  this 
court  to  entertain  an  appeal  from  a  decree  of  the  court  below 
enforcing  on  land  the  lien  of  a  judgment,  is  the  amount  or  value 
of  the  judgments.     If  such  amount  or  value  fall  below  five  hun- 


866  Citations  to  the  Code  op  Vibginia. 

dred   dollars   this    court   has   no   jurisdiction   to  review  such 
decree. 

As  respects  jurisdiction,  the  case  is  not  altered  bj  the  fact 
that  in  the  progress  of  the  cause  in  the  court  below  a  claim  of 
homestead  in  the  land  was  asserted  by  the  defendant. 

For  80  Va.,  217,  see  stipra,  this  Section. 

For  80  Va.,  342,  see  mite,  Section  3454. 

In  the  case  of  Duffy  (&  Bolton  vs.  tlggat,  80  Va.,  664,  decided 
September  17,  1885,  it  was  held:  If  plaintiff's  claim  exceed  five 
hundred  dollars,  and  he  apply  for  appeal,  this  court  hath  juris- 
diction, though  the  judgment  or  decree  be  less.  But  if  the 
judgment  or  decree  be  for  less  than  five  hundred  dollars,  prin- 
cipal and  interest,  at  the  date  of  the  decree,  and  the  defendant 
apply  for  appeal,  this  court  hath  not  jurisdiction. 

Where  purchasers  at  judicial  sale  are  compelled  to  pay  a  second 
time  a  part  of  purchase-money  by  means  of  the  special  commis- 
sioner's failure  to  give  required  bond,  and  his  default  in  paying 
over  money  collected  of  them,  the  jurisdiction  of  this  court  to 
hear  their  appeal  depends  on  the  amount  of  the  defalcation, 
and  not  on  the  amount  of  his  official  bond. 

In  the  case  of  Whit7ner's  Heirs  vs.  Spitzer  et  als.,  81  Va.,  64, 
decided  October  8,  1885.  A  decree  requiring  S.  to  pay  nine 
hundred  and  seventy-five  dollars  to  equalize  the  four  other  heirs 
with  his  wife,  he  paid  the  money.  Later,  an  inquiry  resulted  in 
a  decree  that  the  wife  of  S.  was  entitled  to  an  equal  share  of 
that  sum,  and  that  the  four  other  heirs  refund  to  S.  one-fifth 
thereof.  Held :  This  is  a  decree  for  payment  of  a  less  sum  of 
money  than  constitutes  the  minimum  jurisdictional  amount,  and 
the  appeal  must  be  dismissed. 

In  the  case  of  Cralle  vs.  Cralle,  81  Va.,  773,  decided  April 
25,  1886.  Pending  an  appeal  from  decree  to  which  a  s^iper- 
sedeas  has  been  issued,  and  perfected  by  bond,  the  only  orders 
the  court  below  can  make  in  the  suit  are  such  as  are  needed  to 
preserve  the  rem  in  litigation. 

Code  1873,  Chapter  105,  Section  10,  authorizes  trial  court 
pending  the  suit  to  compel  the  man  to  pay  the  sum  necessary  to 
maintain  the  woman  and  enable  her  to  carry  on  the  suit;  yet  it 
does  not  justify  it  to  make  any  order  for  such  purpose,  pending 
appeal  here  from  decree  rendered  in  same  suit  for  alimony. 

Pending  a  divorce  suit,  trial  court  decreed  alimony  to  the 
woman.  From  the  decree  appeal  was  taken  and  a  supersedeas 
awarded.  Pending  the  appeal  trial  court  decreed  to  the  woman 
an  allowance  of  one  hundred  and  fifty  dollars  to  enable  her  to 
defend  the  suit  in  this  court,  and  twenty-five  dollars  a  month 
for  her  maintenance  during  the  pendency  of  the  suit.  On  ap- 
peal from  last  decree.     Held : 

1.  The  court  below  was  authorized  to  make  the  decree  last 
appealed  from. 


Citations  to  the  Code  of  Virginia.  867 

2.  The  amount  decreed,  however,  being  less  than  the  minimum 
jurisdictional  sum,  the  appeal  must  be  dismissed. 

3.  The  appellant's  remedy  is  by  writ  of  prohibition  from  this 
court  to  the  execution  of  the  decree. 

In  the  case  of  McCarthy  &  Hurlhtirt  vs.  Hamaker  et  als.,  82 
Va.,  471,  decided  October  7, 1886,  it  was  held  :  Where  appellant's 
•debt,  as  claimed  in  his  bill  and  as  allowed  by  the  master  and  con- 
firmed by  the  court,  is  less  than  the  minimum  of  appellate  juris- 
diction, that  debt  cannot  be  supplemented  so  as  to  give  this 
court  jurisdiction  by  the  appellant's  taking  an  assignment  of 
another  debt,  unless  the  assignment  was  recognized  by  the  master 
in  his  report,  and  by  the  court  in  its  decree  confirming  the  same. 

In  the  case  of  Thompson  vs.  Adams,  82  Va.,  672,  decided 
December  9,  1886,  it  was  held:  Where  several  judgment-cred- 
itors with  judgments  each  below  five  hundred  dollars  unite  in 
one  suit  to  enforce  their  liens  on  the  judgment-debtor's  lands, 
and  their  bill  is  dismissed  by  the  court  below,  this  court  has  no 
jurisdiction  to  entertain  their  appeal.  That  the  land  has  been 
conveyed  away  by  a  deed  alleged  to  be  fraudulent  makes  no 
difference  as  to  the  appellate  jurisdiction. 

This  is  the  case  cited  from  11  Virginia  Law  Journal,  217. 

In  the  case  of  ^Y^t^  vs.  Oshum  and  Wife,  83  Va.,  227,  decided 
April,  1887,  it  was  held:  Where  the  claims  of  all  the  appellants 
but  one  are  below  the  appellate  jurisdiction,  but  the  questions 
as  to  all  are  identical  and  their  interests  inseverable,  this  court 
will  retain  the  appeal  for  all. 

This  is  the  case  cited  from  11  Virginia  Law  Journal,  585. 

In  the  case  of  Cabell  cfc  McGuire  vs.  Southern  Mutual  In- 
surance Company,  10  Va.  Law  Journal,  729,  decided  May  6, 
1886.  The  Southern  Mutual  Insurance  Company  conveyed  to 
C.  &  McG.  all  its  assets  in  trust  for  its  creditors,  and  the  trus- 
tees brought  suit  against  the  company  and  its  mutual  policy- 
holders, asking  that  assessments  be  made  upon  the  "deposit 
notes"  of  the  policy-holders  to  pay  the  creditors;  the  several 
claims  against  the  numerous  defendants  were  less  than  five  hun- 
dred dollars,  but  the  aggregate  of  the  claims  of  the  plaintiffs  ex- 
ceeded that  sum.  Held :  The  aggregate  of  all  the  claims  is  the 
plaintiffs'  demand  against  all  the  defendants ;  it  is  the  matter  in 
controversy,  and  this  court  has  jurisdiction  upon  appeal  by  the 
plaintiffs.  The  trustee  represents  the  insured  creditors,  whose 
debt  exceeds  the  jurisdictional  sum,  and  upon  this  ground  also 
the  court  has  jurisdiction. 

In  the  case  of  Acker  vs.  A.  <&  F.  R.  R.  Co.,  84  Va.,  648,  de- 
cided March  22,  1888,  it  was  held:  Excluding  the  three  days 
the  court  held  the  petition  and  record  before  granting  the  writ 
of  error,  a  supersedeas  bond  given  within  one  year  from  the  date 
of  the  judgment  is  in  time. 


868  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Walters  Sons  vs.  Chichester,  84  Va.,  723,  de- 
cided April  12,  1888.  A  creditor,  whose  claim  was  less  than 
five  hundred  dollars,  filed  bill  to  annul  trust  deed.  Other  credi- 
tors whose  separate  claims  exceeded  that  sum,  subsequently 
filed  in  the  clerk's  office  petitions,  without  leave  of  court  and 
notice  to  grantor,  asking  to  be  made  parties.  Decree  dismissed 
the  bill  without  noticing  petitions.  Held  :  The  petitioners  were 
not  parties  below,  and  cannot  be  so  regarded  here,  and  the  ap- 
peal must  be  dismissed  for  want  of  jurisdiction. 

In  the  case  of  Barker  vs.  Jenkins,  84  Va.,  895,  decided  May 
10,  1888,  it  was  held:  An  appeal  lies  to  a  decree  allowing  a 
widow  a  homestead  for  her  lifetime  in  the  realty  of  her  de- 
ceased husband,  though  the  appellant's  interest  therein  -be  less 
than  the  minimum  jurisdictional  amount,  as  the  controversy 
concerns  the  title  to  land. 

In  the  case  of  Hawkins  vs.  Gresharn,  85  Va,,  34,  decided  May 
10,  1888,  it  was  held:  Jurisdiction  as  to  appeals  in  matters 
merely  pecuniary  being  constitutionally  limited  to  five  hundred 
dollars,  the  amount  is  determined  by  the  amount  of  the  plain- 
tiff's claim,  or  by  the  amount  to  be  paid  by  the  defendant  to 
discharge  himself,  as  the  one  or  the  other  may  be  the  appellant. 

In  suits  to  set  aside  fraudulent  deeds  and  to  subject  the  pro- 
perty therein  to  satisfy  a  debt,  it  is  the  amount  of  the  debt,  and 
not  the  value  of  the  property  which  determines  the  appellate 
jurisdiction. 

Where,  in  original  suit  against  decedent's  estate,  creditor's 
claim  exceeded  five  hundred  dollars,  but,  when  amount  in  ad- 
ministrator's hands  was  ascertained,  creditor's  share  thereof  fell 
below  that  sum,  administrator  defaulted,  and  creditor  filed  an 
amended  bill  against  administrator's  sureties,  seeking  to  recover 
of  them  his  said  share ;  upon  plea  of  statute  of  limitations  the 
amended  bill  was  dismissed.  Held:  No  appeal  to  this  court 
lies  to  said  decree. 

In  the  case  of  Cook  vs.  Bondurant,  85  Va.,  47,  decided  May 
17,  1888,  it  was  held:  Where  the  decree  is  for  less  than  five 
hundred  dollars,  including  interest,  the  appeal  must  be  dismissed 
for  want  of  jurisdiction,  though  the  decree  provides  that  certain 
lands  be  sold  unless  the  debt  be  paid  within  a  named  period. 

In  the  case  of  Jordan  vs.  Cunningham^  85  Va.,  418,  decided 
September  20,  1888,  it  was  held :  By  this  section  it  matters  not 
whether  decree  of  refusal  is  to  filing  or  to  granting  prayer  of  a 
bill  of  review  to  final  decree  rendered  more  than  twelve  months 
before,  petitions  from  such  decree  of  refusal  must  be  presented 
within  six  months  from  date  of  refusal. 

In  the  case  of  Board  of  Supervisors  vs.  CatletCs  Executors,  8& 
Va.,  158,  decided  June  13,  1889,  it  was  held :  A  suit  as  to  the 
right  of  a  board  of  supervisors  to  levy  a  tax  to  pay  a  claim  con- 
cerns a  franchise,  and  this  court  has  jurisdiction. 


Citations  to  the  Code  op  Virginia.  869 

In  the  case  of  Lancaster  vs.  Lancaster,  86  Va.,  201,  decided 
June  20,  1889,  it  was  held :  An  order  adjudicating  the  principles 
of  a  cause  is  one  which  so  far  determines  the  rules  or  methods 
by  which  the  rights  of  the  parties  are  to  be  finally  worked  out ; 
that  is  only  necessary  to  apply  these  rules  to  the  facts  of  the 
case  in  order  to  ascertain  the  relative  rights  of  the  parties  with 
regard  to  the  subject-matter  of  the  suit. 

In  the  case  of  Turner  s  Adtninistrator  vs.  Staples  et  als.,  86 
Va.,  300,  decided  September  12,  1889,  it  was  held :  Decree  of 
this  court  upon  a  question  decided  by  the  court  below  is  final 
and  irreversible ;  and  upon  second  appeal  in  the  cause  a  ques- 
tion decided  upon  first  appeal  cannot  be  reversed,  being  res 
judicata. 

In  the  case  of  Yates's  Administrator  et  als.  vs.  Wilson,  86 
Va.,  625,  decided  March  6,  1890,  it  was  held:  When  a  decree 
makes  an  end  of  a  case  and  decides  the  whole  matter  in  con- 
test, and  leaves  nothing  to  be  done  by  the  court  in  the  case,  it 
is  final. 

In  the  case  of  liichrnond,  Fredericksburg  <&  Potomac  Railroad 
Company  vs.  Knopffs,  86  Va.,  981,  decided  June  19,  1890,  it 
was  held :  Where  the  amount  allowed  for  compensation  for  land 
taken  is  less  than  five  hundred  dollars,  this  court  hath  not  juris- 
diction to  review  the  judgment  of  the  court  below. 

In  the  case  of  Bransford  {Treasurer)  vs.  Karn  c&  Hickson, 
87  Va.,  242,  decided  December  11,  1890,  it  was  held:  Where 
the  constitutionality  of  no  statute  is  called  in  question,  the  judg- 
ment of  the  corporation  court  upon  an  appeal  from  the  decision 
of  a  justice  is  final  in  a  case  to  recover  back  money  paid  for 
taxes  under  protest  after  tender  and  refusal  of  coupons. 

In  the  case  of  Prince  George  County  vs.  A.,  M.  <&  O.  R.  R. 
Co.,  87  Va.,  283,  decided  January  8,  1891,  it  was  held:  Where 
right  of  county  to  levy  taxes  is  involved,  this  court  hath,  under 
Virginia  Constitution,  Article  6,  this  section,  jurisdiction  of  an 
appeal  in  an  action  to  recover  a  tax  of  less  than  five  hundred 
dollars  illegally  collected. 

In  the  case  of  Harper  vs.  Vaughan,  87  Va.,  426,  decided 
February  5,  1891,  it  was  held:  Appeal  lies  from  interlocutory 
decree  adjudicating  the  principle  of  the  case,  but  the  final  de- 
cree may  be  waited  and  the  appeal  is  in  time. 

In  the  case  of  Sellers  {Executor)  vs.  Reed,  88  Va.,  377,  decided 
November  5,  1891,  it  was  held :  A  trust  deed  to  secure  a  debt 
less  than  five  hundred  dollars  having  been  executed  on  an  in- 
terest under  a  will  by  a  legatee,  who  dies  before  the  youngest 
child  reached  seventeen  (the  period  of  partial  distribution),  the 
question  in  the  court  below  was,  whether  his  interest  was  a 
vested  interest  going  to  his  administrator,  or  a  contingent  in- 
terest lapsing  at  his  death.     The  court  of  appeals  has  jurisdic- 


870  Citations  to  the  Code  of  Yirginia. 

tion  of  the  appeal,  as  the  controversy  concerns  the  title  to 
land. 

In  the  case  of  Pannill  vs.  Coles,  81  Va.,  380,  decided  January 
21,  1886,  it  was  held :  State  Constitution,  Article  6,  Section  2, 
gives  this  court  appellate  jurisdiction  in  controversies  concern- 
ing, the  title  of  boundaries  of- land,  whatever  the  amount  and 
whatever  the  element  of  title  involved  in  the  controversy,  and, 
consequently,  such  jurisdiction  extends  to  cases  of  unlawful 
entry  and  detainer. 

Section  3457. 

In  the  case  of  Effinger  \&.  Kenney  [Trustee),  24  Grat.,  116, 
decided  November  26,  1873,  it  was  held,  pp.  119-20:  The 
transcript  of  the  record  of  the  county  court,  certified  by  the 
clerk  of  that  court,  was  filed  with  the  petition  to  the  circuit  court, 
and  that  transcript,  together  with  a  transcript  of  the  judgment 
of  the  circuit  court  thereon,  is  certified  to  this  court  by  the  clerk 
of  the  circuit  court,  and  is  a  substantial  compliance  with  the 
requirements  of  the  statute. 

In  the  case  of  Mandeville  vs.  Perry,  6  Call,  78  and  83,  decided 
May,  1806,  it  was  held :  The  record  in  common  law  suits  con- 
sists of :  The  writ  for  the  purpose  of  amending  by  if  necessary. 
The  whole  pleadings  between  the  parties.  Papers  of  which 
proffert  is  made  or  oyer  demanded,  and  such  as  have  been 
specially  submitted  to  the  consideration  of  the  court  by  a  bill 
of  exceptions,  a  demurrer  to  evidence,  or  a  special  verdict,  or 
are  inseparably  connected  with  some  paper  or  evidence  so  re- 
ferred to.  These,  with  the  several  proceedings  at  rules  or  in 
court  uiftil  the  rendition  of  judgment,  are  to  be  noticed  by  the 
court  and  no  others. 

In  the  case  of  White  vs.  Toncray,  9  Leigh,  347,  decided  April, 
1838,  it  was  held,  p.  351 :  Pleas  tendered  by  a  defendant  in  an 
action  at  law,  and  rejected  by  the  court,  are  not  part  of  the 
record,  unless  made  so  by  bill  of  exceptions  to  the  rejection  of 
them,  or  by  order  of  the  court  that  they  shall  be  made  so  ;  and 
a  mere  memorandum,  that  when  the  pleas  were  rejected,  the 
court  declared  that  the  matter  thereof  might  be  given  in  evi- 
dence without  the  pleas  being  filed,  and  that  this  was  done  at 
the  trial,  does  not  make  the  rejected  pleas  part  of  the  record. 

If  pleas  be  tendered  by  a  defendant  and  rejected  by  the  court, 
and  he  takes  no  exception  to  the  rejection  of  them,  he  shall  be 
presumed  in  the  appellate  court  to  have  acquiesced. 

In  the  case  of  Roanoke  Land  and  Improvement  Company  vs. 
Karn  &  Hickson;  Same  vs.  Snead  <&  Winston,  80  Va.,  589,  de- 
cided June  25,  1885,  it  was  held,  p.  591 :  Nothing  not  made 
part  of  the  record  by  bill  of  exceptions  or  by  order  of  the  court, 
can  be  regarded  as  such  by  the  appellate  court.  The  clerk  can 
add  nothing  to  the  record,  and  his  certificate  that  a  deposition. 


Citations  to  the  Code  of  Virginia.  871 

or  other  paper  copied  by  him,  was  the  evidence  whereon  the 
judgment  was  founded,  is  no  part  of  the  record. 

In  the  case  of  Blanton  vs.  Can^oll,  86  Va.,  539,  decided  De- 
cember 5,  1889,  it  was  held :  To  appeals  from  decrees  rendered 
before  this  section.  Code  1887,  took  effect,  requiring  notice  of 
intention  to  appeal  to  be  given  opposite  party,  the  section  has 
no  application. 

In  the  case  of  Mears  c&  Levris  vs.  Dexter,  86  Va.,  828,  de- 
cided April  17,  1890,  it  was  held :  This  section  providing  that 
notice  of  intention  to  apply  for  transcript  of  record,  with  a  view 
of  applying  for  an  appeal  or  writ  of  error.  Held :  Merely  direc- 
tory, and  not  a  limitation  upon  the  jurisdiction  of  this  court. 

Section  3458. 
In  the  case  of  Poind exter' s  Executors  vs.  Green's  Executors,  6 
Leigh,  504,  decided  December,  1835.  Report  of  an  account  in 
chancery  not  excepted  to  by  either  party ;  decree  according  to 
the  report;  on  appeal  taken,  the  report  is  omitted  from  the  re- 
cord according  to  the  statute  of  1825-'26.  Held :  Either  party 
may  call  for  the  report  in  this  court  and  have  it  brought  up ; 
but  if  neither  party  does  so,  no  objections  can  be  considered 
which  the  report  would  be  necessary  to  explain  or  support. 

• 
Section  3459. 

In  the  case  of  Barhsdale  vs.  Parker's  Administrators,  87  Va., 
141,  decided  December  4, 1890,  it  was  held :  This  section  author- 
izes selections  from  the  completed  record,  and  not  additions 
after  final  decision.  And  deed  placed  among  the  papers,  with- 
out being  filed  or  referred  to  in  the  proceeding,  becomes  no  part 
of  the  record  on  appeal  by  being  copied  into  the  transcript  by 
order  of  the  judge  under  said  section. 

Section  3463. 
For  the  reference  to  6  Leigh,  504,  see  ante.  Section  3458. 

Section  3467. 
For  the  reference  to  81  Va.,  773,  see  ante.  Section  3455. 

Section  3469. 
In  the  case  of  Rhea  et  als.  vs.  Preston,  75  Va.,  757,  decided 
July  21,  1881,  it  was  held,  p.  778 :  Judgments  for  money,  whether 
docketed  or  not,  bind  the  unaliened  lands  of  the  debtor;  cer- 
tainly those  owned  by  him  at  the  date  of  the  judgments,  and,  it 
may  be,  those  subsequently  acquired,  in  the  order  in  which  the 
judgments  are  recovered ;  and  the  same  is  true  of  decrees  for 
money;  and  so,  though  not  docketed,  they  bind  the  debtor's 
lands  subsequently  aliened  to  a  purchaser  with  notice,  even 
fhough  he  be  a  purchaser  for  value ;  but  unless  docketed  they 


872  Citations  to  the  Code  of  Virginia. 

are  not  liens  on  lands  subsequently  aliened  to  bona  fide  pur- 
chasers for  value  without  notice,  and  a  trustee  in  a  deed  of  trust 
given  to  secure  a  debt,  and  the  creditor  secured,  are  purchasers 
for  value  within  the  meaning  of  the  registration  laws. 

Section  3470. 

In  the  case  of  NeUon  vs.  Anderson,  2  Call,  286  (2d  edition, 
242),  decided  April  16,  1800.  M.  appealed  from  a  judgment 
obtained  against  him  by  A.  in  the  county  court.  N.  joins  M.  in 
the  appeal  bond ;  then  M.  dies,  and  the  appeal  abates  and  is  not 
revived.     Held :  N.  is  exonerated. 

In  the  case  oiWilson  vs.  ^Y^lsol^iS  Administrators,  1  H.  &  M.. 
16,  decided  September  30, 1806,  it  was  held :  Executors  and  ad- 
ministrators having  given  security  for  their  administration 
are  not  to  be  required  to  give  security  on  obtaining  injunctions, 
appeals,  writs  of  error,  or  supersedeas. 

In  the  case  of  Sadler's  Executor  and  Legatees  vs.  Oreen,  1 
H.  &  M.,  26,  decided  October  13,  1806,  it  was  held:  Where  exe- 
cutors and  legatees  jointly  appear,  the  legatees  (being  in  posses- 
sion of  the  property  in  dispute)  may  be  ruled  to  give  security  for 
the  prosecution  of  the  appeal. 

In  the  case  of  Dunton  vs.  Hqbins,  2  Munf.,  341,  decided.  Sep- 
tember 30,  1811,  it  was  held :  Where  a  decree  is  rendered  on  a 
matter  in  which  the  party  appellant  is  interested  in  his  own 
right  and  also  as  executor,  he  must  give  bond  and  securit}^  be- 
fore prosecuting  the  appeal,  in  a  penalty  equal  to  double  the 
amount  of  such  part  of  the  decree  as  was  against  him  in  his 
own  right. 

In  the  case  of  Shearman  (Adm^inistrator,  etc.)  vs.  Christian  et 
als.,  1  Rand.,  393,  decided  March,  1823,  it  was  held:  Where  an 
executor  is  sued  in  chancery  for  a  subject  which  is  in  part  per- 
sonal to  himself  and  in  part  touching  his  executorial  character, 
he  ought  not  to  be  compelled  to  give  an  appeal  bond  for  the 
latter,  as  the  subject  is  covered  by  his  official  bond. 

In  the  case  of  Brown  vs.  Matthews,  1  Rand.,  462,  decided 
May,  1823,  it  was  held :  An  appeal  is  taken  from  the  county 
court  sitting  in  chancery,  and  a  bond  is  given,  which  is,  in  fact, 
a  certiorari,  and  not  an  appeal  bond.  No  objection  is  made  to 
the  regularity  of  the  bond  in  the  court  of  chancery.  An  appeal 
is  taken  to  the  court  of  appeals.  In  that  court  an  objection  is 
made,  for  the  first  time,  to  the  bond.  The  objection  comes  too 
late;  but  if  it  had  been  made  in  the  court  of  chancery,  that 
court  could  only  have  dismissed  the  appeal  nisi,  or  have  laid 
the  party  under  a  rule  to  give  a  proper  bond  'Rrithin  a  reason- 
able time. 

In  the  case  of  Zinney's  Executor  vs.  Holliday,  3  Rand.,  1,  de- 


I 


Citations  to  the  Code  of  Virginia.  873 

■cided  November,  1824,  it  was  held:  An  executor  can  appeal 
without  giving  bond  and  security. 

In  the  case  of  Porter's  Executor  vs.  Arnold^  3  Rand.,  479,  de- 
■cided  October,  1825,  it  was  held:  On  an  appeal  by  executors 
from  a  decree  in  favor  of  distributees  or  legatees  for  their  pro- 
portions of  the  estate,  the  executors  ought  to  give  bond  and  se- 
curity. 

In  the  case  of  Epps  vs.  Thurman,  4  Rand.,  384,  decided  June, 

1826,  it  was  held :  When  a  party  has  obtained  an  injunction 
from  the  court  of  chancery  to  a  judgment  at  law  which  is  after- 
wards dissolved,  and  he  appeals  to  the  court  of  appeals,  he  can- 
not be  required  to  give  security  for  the  amount  of  the  judgment 
enjoined,  but  only  for  such  costs  as  may  be  awarded  against 
him  by  the  court  of  appeals. 

In  the  case  of  McKay  vs.  Ilite's  Executors,  4  Rand.,  564,  de- 
cided November,  1826,  it  was  held:  A  party  appealing  from  an 
order  dissolving  an  injunction  can  only  be  required  to  give  se- 
curity to  perform  the  decree  of  the  inferior  court,  and  to  pay 
the  costs  and  damages  awarded  in  the  appellate  court  if  the 
decree  shall  be  affirmed. 

In  the  case  of  Turner  vs.  Scott,  5  Rand.,  332,  decided  June, 

1827,  it  was  held:  A  dissolved  injunction  is  revived  by  an  ap- 
peal taken  by  the  plaintiff  in  the  court  of  chancery,  and  it  is 
improper  in  the  appellee  to  take  out  an  execution  so  long  as 
the  appeal  is  depending. 

In  the  case  of  Jackson  {Administrator)  vs.  Henderson,  etc.,  3 
Leigh,  196,  decided  November,  1831,  it  was  held:  The  con- 
dition of  an  appeal  bond  misrecites  the  judgment  appealed 
from  as  being  for  three  thousand  nine  hundred  dollars,  when  in 
truth  it  was  for  three  thousand  nine  hundred  and  fifty-seven 
dollars,  but  recites  the  judgment  correctly  in  all  other  re- 
spects. Quaere:  Whether  such  misrecital  renders  the  appeal 
bond  naught? 

In  the  case  of  PagTis  Executor  vs.  Jones,  6  Leigh,  299,  de- 
cided April,  1835,  it  was  held:  In  an  action  against  an  ex- 
ecutor, judgment  is  entered  against  him  personally  instead  of 
de  honis propriis  :  though  the  judgment  be  plainly  erroneous,  yet 
if  the  executor  pray  an  appeal  or  supersedeas,  it  can  only  be 
Allowed  him  upon  his  giving  an  appeal  bond  with  surety. 

A  supersedeas  is  allowed  by  this  court  without  requiring  a 
supersedeas  bond,  when  one  ought  to  have  been  required,  and 
the  cause  is  docketed  without  objection.  This  is  not  good  cause 
to  dismiss  the  supersedeas,  on  motion  made  after  a  lapse  of  six 
years  from  the  time  of  awarding  it. 

In  the  case  of  Erskin  vs.  Henry  and  Wife  et  als.,  6  Leigh, 
378,  decided  April,  1835,  it  was  held :  Suit  in  equity  against 
defendant  as  executor  and  in  his  own  right  as  legatee,  and  de- 


874  Citations  to  the  Code  of  Virginia. 

cree  against  Mm  personally,  on  appeal  allowed  him  from  the 
decree,  an  appeal  bond  with  surety  shall  be  required  of  him. 
Interlocutory  decree  directs  defendant  to  deliver  up  slaves  to 
be  divided  among  plaintiffs,  and  then  final  decree  against  him 
for  the  profits;  defendant  appeals  from  both  decrees.  Held: 
If  defendant  has  complied  with  the  interlocutory  decree  by  de- 
livering the  property,  he  shall  not  be  required  to  give  an  appeal 
bond  with  surety  for  delivery  thereof  in  case  of  afl&rmance ;  if 
he  has  not  so  complied  with  it,  such  appeal  bond  shall  be  re- 
quired. And  upon  the  question  whether  defendant  has  so  com- 
plied or  not,  parol  evidence,  by  affidavits,  will  be  received  in  the 
appellate  court. 

In  the  case  of  Amis  vs.  Roger,  7  Leigh,  221,  decided  Feb- 
ruary, 1836.  The  judge  of  a  circuit  court,  in  vacation,  allows  a 
writ  of  error  to  a  judgment  of  a  county  court;  but  the  writ  of 
error  is  dismissed  at  the  next  term  of  the  circuit  court  as  im- 
providently  allowed,  since  the  judge  in  vacation  had  no  au- 
thority to  allow  it ;  then  a  writ  of  error  is  prayed  in  term  timo 
and  denied.  Held :  The  writ  of  error  allowed  by  the  judge  in 
vacation  was  properly  dismissed,  but  as  the  judgment  of  the- 
county  court  was  erroneous,  it  was  error  in  the  circuit  court  not 
to  allow  the  writ  prayed  in  term  time. 

In  the  case  of  McClung  vs.  Beirne,  10  Leigh,  394  (2d  edition,. 
410),  decided  July,  1839.  A  judgment  was  rendered  May  8, 
1828,  for  $148.63  damages,  with  interest  and  costs ;  on  the  same 
day  an  appeal  was  allowed.  The  judgment  being  affirmed, 
damages  were  recovered  against  the  appellant  for  retarding  the 
execution,  and  also  costs  in  the  appellate  court.  A.  fieri  facias 
being  then  issued  and  returned  nulla  hona,  the  surety  in  the  ap- 
peal bond  paid  $362.64  in  satisfaction  of  the  judgment,  and 
within  a  year  after  the  affirmance  filed  a  bill  to  pay  real  estate 
aliened  by  the  debtor  between  the  date  of  the  original  judg- 
ment or  affirmance.     Held : 

1.  The  surety  is  to  be  substituted  in  the  place  of  the  judg- 
ment-creditor, and  to  have  the  benefit  of  his  lien. 

2.  The  real  estate  aliened  by  the  debtor  between  the  date  of 
the  original  judgment  and  the  date  of  the  judgment  and  affirm- 
ance, whether  owned  by  him  at  the  date  of  the  original  judg- 
ment or  acquired  afterwards,  is  subject  to  the  lien. 

3.  The  lien  is  not  only  for  the  damages,  interest  and  cost  re- 
covered by  the  original  judgment,  but  also  for  the  damages  and 
costs  to  which  the  creditor  became  entitled  by  the  judgment  of 
affirmance. 

In  the  case  of  Brown  vs.  Glascock's  Administrator,  1  Eob.,, 
461  (2d  edition,  486).  A  persona]  decree  against  an  adminis- 
trator being  recovered  by  a  creditor  of  the  decedent,  the  ad- 
ministrator appeals,  giving  an  appeal   bond  with  surety;  th& 


Citations  to  the  Code  of  Virginia.  875 

decree  being  affirmed,  an  arrangement  is  made  between  the 
creditor  and  the  surety  in  the  appeal  bond,  by  which  the  decree 
is  transferred  to  the  surety,  who  makes  a  part  of  the  amount 
due  thereon  by  execution  against  the  administrator,  and  then 
brings  an  action  on  the  administration  bond  in  the  name  of  the 
creditor  as  relator,  against  the  surety  therein  bound,  in  which 
action  a  judgment  is  recovered  for  the  balance  due  on  the 
affirmed  decree,  being  less  than  the  amount  of  damages  in- 
curred by  the  appeal.  Held :  The  surety  in  the  administration 
bond  has  no  claim  to  be  substituted  to  the  remedy  of  the  cred- 
itor on  the  appeal  bond,  and  equity  will  not  interfere  in  his 
favor  by  enjoining  the  judgment. 

In  the  case  of  Mulliday  vs.  Machir's  Administrators,  4  Grat., 
1,  decided  April,  1846,  it  was  held :  This  court,  upon  affirming 
the  decree  of  the  court  below,  which  does  not  bear  interest,  will 
give  damages  at  the  rate  of  six  per  cent,  per  annum  upon  the 
amount  of  the  decree,  exclusive  of  costs,  from  the  time  the  ap- 
peal takes  effect  until  paid. 

In  the  case  of  Magill  vs.  Sauer,  20  Grat.,  540,  decided  March, 
1871,  it  was  held :  Upon  a  decree  in  favor  of  an  attaching  cre- 
ditor, and  an  appeal  therefrom,  the  appellant  gives  an  appeal 
bond.    The  giving  of  this  bond  does  not  release  the  attachment. 

The  act,  Code  of  1860,  Chapter  151,  Section  31,  has  no  ap- 
pHcation  to  the  attachment  lien  upon  the  estate  of  the  debtor, 
whether  it  be  real  or  personal  property,  or  choses  in  action. 
To  relieve  the  property  attached,  bond  is  to  be  given,  as  re- 
quired in  Section  13  of  the  act. 

In  the  case  of  Cardwell  vs.  Allen  {Trustee),  28  Grat.,  184,  de- 
cided March,  1877,  it  was  held:  That  portion  of  Section  13, 
Chapter  178,  of  the  Code  of  1873,  prescribing  the  penalty  of  an 
appeal  and  supersedeas  bond,  refers  only  to  the  damages  men- 
tioned in  Section  24  of  the  same  chapter,  and  was  not  intended 
to  cover  the  rents  and  profits  of  real  estate  in  possession  of  the 
appellant,  who  had  given  a  deed  of  trust  thereon  to  secure  a 
debt  fully  its  value,  he  having  obtained  an  injunction  to  prevent 
the  sale  of  such  real  estate,  which  injunction  was  dissolved,  and 
the  bill  was  dismissed ;  and  the  penalty  of  the  appeal  and  super- 
sedeas bond  will  not  be  fixed  with  reference  to  such  rents  and 
profits. 

The  word  "  awarded "  in  said  Section  13  refers  to  the  words 
"damages  and  costs,"  and  the  word  "incurred"  to  the  word 
"fees"  therein,  so  as  make  the  meaning  the  same  as  if  the  sen- 
tence had  been  written :  "  and  also  to  pay  all  damages  and  costs 
which  may  be  awarded  against,  and  all  fees  which  may  be  in- 
curred by,  the  appellants  or  petitioners." 

The  penalty  of  the  appeal  and  supersedeas  bond  should  be 
sufficient  to  indemnify  and  save  harmless  the  surety  in  the  in- 
junction bond. 


876  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Marnsherger  et  als.  vs.  Yancey  et  als.,  33  Grat., 
627,  decided  September,  1880.  A  decree  was  rendered  against 
T.,  a  principal  debtor,  and  M.,  his  surety  on  one  bond;  against 
T.,  a  principal,  and  W.,  his  surety  on  another  bond;  and  against 
said  T.,  principal,  and  H.,  his  surety  on  another  bond — all  given 
for  deferred  payments  for  purchases  of  land,  part  by  Y.  and 
part  by  T.  An  appeal  was  taken  by  both  principals  and  sure- 
ties from  said  decree,  but  the  supersedeas  bonds  were  executed 
only  by  T.,  one  of  the  principals,  and  H.,  one  of  the  sureties. 
The  condition  of  the  bond,  as  prescribed  by  the  judge  award- 
ing the  supersedeas,  was,  to  pay  all  "  costs  and  damaares  accord- 
ing to  law,  and  also  any  deficiency  in  the  funds  arising  from 
the  land  sales  decreed,  in  meeting  and  discharging  the  sums 
decreed  against  the  parties,  respectively,  in  case  the  decree 
complained  of  be  affirmed,  or  the  appeal  or  supersedeas  be  dis- 
missed." The  condition  inserted  in  the  bond  by  the  clerk  was, 
to  "pay  the  judgment,"  in  addition  to  that  prescribed  by  the 
judge.  On  a  suit  on  the  appeal  bond,  held :  The  stipulations 
in  the  bond  to  "pay  the  judgment,"  and  "also  the  deficiency" 
on  the  resale  of  the  lands,  should  be  regarded  as  an  alternative 
provision,  intended  to  accomplish  one,  but«  the  same  object, 
namely,  the  satisfaction  of  the  decree  and  the  payment  of  costs 
and  damages  according  to  law.  The  proceeds  of  these  bonds, 
when  collected,  are  applicable  to  the  satisfaction  of  the  decree 
appealed  from,  as  reduced  by  the  resales  of  the  lands  appor- 
tioned amongst  all  of  the  parties  against  whom  the  decree  was 
rendered;  and  H.,  a  surety  for  T.,  a  principal,  now  a  bankrupt, 
who  joined  in  the  appeal  bond,  is  not  only  entitled  to  his  pro- 
portion of  the  fund  arising  from  the  judgment  on  the  appeal 
bond,  to  be  credited  on  the  decree  against  him  as  such  surety, 
but  he  and  his  co-obligors  in  the  bond,  who  have  satisfied  the 
penalty,  are  entitled  to  indemnity  from  Y.,  one  of  the  princi- 
pals, for  the  portion  credited  to  him  as  derived  from  said  bond, 
and  are  also  entitled  to  contributions  from  W.  as  co-surety  on 
the  original  contract  to  T.  for  the  amount  paid  by  them  on  said 
appeal  bond. 

In  the  case  of  Pace  {Assignee)  vs.  FicMins  Executrix  et  als., 
76  Va.,  292. 

1.  Limitation. — Appeal. — An  appeal  from  a  final  decree  of 
June  2,  1877,  was  allowed  May  8,  1879,  but  the  bond  was  not 
given  until  June  9,  1879.  Held:  Under  Code  1873,  Chapter 
178,  Section  17,  the  appeal  must  be  dismissed. 

2.  Appeal. — Bond  — Assignee  in  bankruptcy  filed  a  bill  in  the 
State  court  which  was  dismissed  with  costs ;  that  assignee  dying, 
his  successor  presented  petition  for  appeal.  It  was  insisted  that 
no  bond  was  required,  as  the  appeal  was  partly  to  protect 
decedent's   estate.      Held:    Bond   was   necessary,  as   the   see- 


Citations  to  the  Code  of  Virginia.  877 

end  assignee  had  nothing  as  such  to  do  with  his  predecessor's 
estate. 

3.  Chancery  Practice. — Final  Decree. — It  was  insisted  that 
the  decree  was  not  final,  because  rendered  in  vacation,  and 
the  judge  afterwards  gave  written  instructions  to  the  clerk  how 
to  tax  the  costs.  Held :  Decree  dismissing  the  bill  with  costs 
must  be  final;  rendered  in  vacation  it  takes  effect  from  time  it  is 
entered  of  record,  and  the  judge  cannot  afterwards  impart  to  it 
a  different  character. 

In  the  case  of  Acker  vs.  A.  (&  F.  R.  R.  Co.,  84  Va.,  648,  de- 
cided March  22,  1888,  it  was  held :  Supersedeas  bond  made  pay- 
able to  the  Commonwealth  is  sufficient. 

Bond  reciting  the  judgment  as  that  of  "the  Circuit  Court  of 
Alexandria,"  omitting  the  words  "the  city  of,"  is  not  vitiated  by 
such  omission. 

A  bond  containing  not  "a  waiver  of  homestead"  may  be  in- 
sufficient, and  may  be  made  sufficient  at  any  time  on  motion  of 
the  defendant  in  error,  but  it  is  not  a  void  bond. 

Section  3474. 

In  the  case  of  Yarhorough  et  ux.  vs.  Deshazo,  7  Grat.,  374,  de- 
cided May  5,  1871,  it  was  held :  Upon  an  appeal  to  the  court  of 
appeals  from  a  final  judgment,  decree,  or  order,  if  the  appeal 
bond  is  not  given  within  five  years  from  the  date  of  said  judg- 
ment, decree,  or  order,  the  appeal  will  be  dismissed. 

In  the  case  of  Callaway  vs.  Harding,  23  Grat.,  542,  decided 
June,  1873,  it  was  held :  The  longest  period  of  limitation  within 
which  a  petition  for  an  appeal,  writ  of  error,  and  supersedeas  can 
be  presented  is  two  years,  nine  months,  and  ten  days ;  as  to  final 
judgments,  decrees,  and  orders  rendered  before  the  passage  of 
the  act  of  November  5,  1870,  and  as  to  those  since  rendered, 
such  period  of  limitation  is  two  years. 

In  the  case  of  Otterhack  vs.  Alexandria  <&  Fredericksburg 
Railroad  Company,  26  Grat.,  940,  decided  December  16,  1875, 
it  was  held :  A  judgment  is  rendered  May  13,  1872,  and  one  of 
the  parties  obtains  an  award  of  supersedeas  to  the  judgment  on 
the  9th  of  November,  1872,  but  the  supersedeas  bond  is  not 
given  until  April  15,  1875,  though  counsel  had  marked  his  name 
on  the  docket  as  counsel  for  the  appellee.  The  bond  not  hav- 
ing been  given  within  the  time  prescribed  by  the  statute,  the 
appeal  must  be  dismissed,  and  the  counsel  marking  his  name 
on  the  docket,  though  it  may  be  a  waiver  of  process,  is  not  a 
waiver  of  the  bond. 

In  the  case  of  Pace  {Assignee)  vs.  Ficklin's  Executrix  et  als,, 
76  Va.,  292. 

Cimitation. — The  period  between  death,  of  first  and  appoint- 
ment of  second  assignee  will  be  included  in  the  two  years  allowed 
for  appeal.    The  statute  does  not  begin  to  run  until  some  person 


878  Citations  to  the  Code  of  Virginia. 

exists  capable  of  suing ;  but  having  once  begun,  is  not  stopped 
by  death  or  other  disability. 

In  the  case  of  Frazier  vs.  Frazier  et  als.,  11  Va,,  775,  decided 
October  11,  1883.  Final  decree  rendered  November  30,  1880. 
Record  for  appeal  presented  November  28,  1881,  to  a  judge  of 
this  court.  The  judge  endorsed  that  fact  on  the  same  day  on 
the  record,  and  April  24,  1882,  he  also  endorsed  thereon  that 
he  declined  to  act,  because  record  was  unaccompanied  by  a 
petition.  His  official  term  expiring  December  31,  1882,  record 
went  into  the  hands  of  his  successors.  Record  was  endorsed, 
appeal  allowed  by  one  of  those  successors  on  January  8,  1883, 
and  was  delivered  to  the  clerk  the  next  day,  and  the  bond  was 
given  on  the  30th.  It  appears  not  when  the  petition  was  put  in 
the  record.  Held :  The  time  during  which  the  first  judge  held 
the  record  must  be  excluded  from  the  computation  of  the  two 
years  of  limitation  for  appeals  under  Code  1873,  Chapter  178, 
Section  17,  as  amended  by  Chapter  42,  p.  30,  Acts  1876-77. 
The  statute  ceases  to  run  on  the  endorsement  by  the  first  judge 
of  his  receipt  of  the  record.  This  court  hath  jurisdiction  of  the 
appeal. 

Section  3475. 

In  the  case  of  Barksdale  &  Terry  vs.  Fitzgerald,  76  Va.,  892, 
895-'96. 

1.  Subrogation.  —  Principal  and  Surety.  —  Evidence. — Case 
here. — Judgment  against  T.  and  another  docketed  April,  1872. 
Fi.  fa.  levied  and  forthcoming  bond  taken  with  E.  as  surety. 
Bond  forfeited  and  returned  May,  1873,  but  not  docketed. 
Judgment  on  the  bond  against  all  the  obligors  January  19,  1874, 
and  docketed.  E.  claims  that  he  paid  judgment  as  surety  and 
asks  to  be  substituted  to  the  lien  of  the  judgment  on  the  land 
of  T.  conveyed  by  trust  deed  to  secure  F.,  recorded  January  4, 
1874.  Fi.  fa.  on  last  judgment  levied  on  principal  obligor's 
property,  but,  with  consent  of  surety,  held  up  by  plaintiffs' 
order.  The  debt  was  then  paid  without  sale.  On  the  last  fi.fa. 
is  an  endorsement  purporting  to  be  signed  by  W.  and  S.,  the 
judgment-creditor's  attorneys,  to  the  effect  that  the  fi.  fa.  was 
satisfied  by  E. ;  and  one  of  the  attorneys  deposed  that  he  was 
induced  to  hold  up  the  fi.  fa.  by  the  promise  of  one  of  the  prin- 
cipals or  the  surety  E.,  or  both,  to  see  the  money  paid  at  an 
early  day,  whilst  the  testimony  of  the  sheriff  tends  to  show  that 
if  payment  was  made  by  either,  that  principal  or  E.,  it  was  pro- 
bably by  the  former.     Held  : 

(1.)  The  endorsement  on  the  fi.fa.  is  not  evidence  against  any 
other  than  the  judgment-creditor. 

(2.)  The  omis  of  proving  the  payment  by  himself,  so  as  to  en- 
title him  to  the  relief  he  asks,  rests  on  E.,  and  as  it  is  insuffi- 
cient, the  other  questions  involved  are  left  undecided. 


Citations  to  the  Code  of  Virginia.  879 

2.  Qucere  :  Whether  the  original  judgment  was  merged  in  the 
forfeited  forthcoming  bond,  or  in  the  subsequent  judgment  on 
the  bond,  it  never  having  been  quashed,  or  liable  to  be  quashed, 
so  far  as  it  appears?  See  Bea  vs.  Preston,  75  Ya.,  757;  Bank 
of  Old  Dominion  vs.  Allen,  75  Va.,  200. 

3.  Qucei'e :  Whether  the  payment  (if  made)  by  the  surety,  and 
the  release  thereby  effected  of  the  principal's  property,  render 
the  surety's  right  of  substitution  (if  it  exists)  to  the  lien  of  the 
first  judgment  subordinate  to  the  trust  deed,  which  is  junior  to 
that  judgment?  See  Clevengery^.  Miller,  11  Grat.,  740;  Sher- 
rnan's  Adtninistrator  vs.  Shaver,  etc.,  1  Matthews,  1. 

4.  Judicial  Sales. — Interest. — Former  Judgment. — Case  at 
Bar. — A  cause  being  remanded  for  further  proceedings,  with  a 
view  to  a  sale  of  the  land  in  parcels,  if  more  advantageous,  com- 
missioners divide  the  land  into  parcels  according  to  the  direc- 
tions of  the  debtor,  T.  Their  report,  unexcepted  to,  is  confirmed. 
The  court  then  directed  the  sole  commissioner  to  offer  the  land 
in  parcels,  and  accept  the  bids,  if  sufficient  to  pay  the  liens ;  but 
if  not,  to  offer  it  undivided.  The  bids  for  the  land  in  parcels 
aggregated  $1,066.40 — a  sum  less  than  one-fifth  of  the  liens. 
The  bid  for  it  undivided  was  $4,977,  which  was  reported,  and 
the  court  confirmed  the  sale.  Account  of  liens  having  been 
taken,  only  two  debts  were  reported — those  of  F.  and  of  H. 
T.  excepted  to  both  as  usurious.  The  debt  of  H.  bore  interest 
at  12^  per  centum  per  annum,  that  being  the  rate  allowed  by 
law  when  the  debt  was  contracted.  That  of  F.  had  been  finally 
adjudicated  in  a  former  suit  between  T.  and  F.  The  exceptions 
were  overruled.    On  appeal.     Held: 

(1.)  There  was  no  error  in  the  sale. 

(2.)  The  exceptions  were  properly  overruled. 

5.  Appeals, — In  a  cause  several  decrees  are  pronounced, 
from  three  whereof  successive  appeals  are  allowed,  first,  to  T. ; 
second,  to  E. ;  third,  to  T.  and  E,  jointly.  The  first  two  were 
dismissed  for  failure  respectively  to  give  bond,  and  to  print  the 
record.  The  third,  which  relates  only  to  the  last  decree  pro- 
nounced, remained.  Held :  The  spirit,  if  not  the  letter,  of  Code 
1873,  Chapter  178,  Section  18,  would  seem  to  preclude  inquiry 
into  the  matters  involved  in  the  former  appeals ;  but  the  con- 
clusions arrived  at  are  unaffected  by  waiving  the  bar  of  the 
statute  in  the  present  case. 

In  the  case  of  Cobljs  Assignee  vs.  Gilchrist's  Administrator  et 
als.,  80  Va,,  503,  decided  June  11,  1885,  it  was  held :  Order  dis- 
missing appeal  or  writ  of  error  effects  same  purpose  as  affirm- 
ance. 

Section  3482. 

In  the  case  of  Ixe  vs.  Turherville,  2  Wash.,  209  (1st  edition, 
162),  decided  at  October  term,  1795,  it  was  held :  If  a  superse- 


880  Citations  to  the  Code  op  Virginia. 

deas  be  granted  to  an  order  of  an  inferior  court  giving  leave  to^ 
build  a  mill,  the  superior  court  is  not  confined  to  errors  apparent 
on  the  face  of  the  record. 

In  the  case  of  Bohn  vs.  Sheppard,  4  Munf.,  403,  decided  Jan- 
uary 26,  1815,  it  was  held :  The  court  to  which  an  appeal  is 
taken  from  an  order  granting  letters  of  administration  ought- 
not  to  take  into  consideration,  in  deciding  upon  such  appeal^ 
the  comparative  merits  of  the  grantee  and  of  the  party  who  op- 
pose him  as  candidates  for  the  office,  unless  it  appear,  by  some 
evidence  from  the  record,  that  a  motion  for  the  appointment  of 
such  opposing  party  was  substantially  made  in  the  court  below. 

In  the  case  of  Reid's  Administrators  vs.  Striders  Adminis- 
trators, 7  Grat.,  76,  decided  May  14,  1850,  it  was  held :  A  writ 
of  error  coram  vohis  does  not  lie  to  the  supreme  court  of  ap- 
peals. 

In  the  case  of  Jeter  vs.  Board  et  als.,  27  Grat.,  910,  decided 
December  7,  1876,  it  was  held :  There  may  be  an  appeal  as  of 
right  from  an  interlocutory  order  of  a  county  court  in  a  contro- 
versy concerning  the  establishment  of  a  road. 

Section  3484. 

In  the  case  of  Dudleys  vs.  Dudleys,  3  Leigh,  436,  decided 
February,  1832.  Upon  a  question  of  probate  of  a  will,  the  tes- 
timony of  one  of  the  attesting  witnesses  is  directly  contradicted 
by  that  of  another ;  the  county  and  circuit  courts  both  give  cre- 
dit to  the  witness  for  the  will ;  on  appeal  from  the  sentence  of 
probate,  held :  That  the  court  of  appeals,  on  a  mere  question  of 
credibiHty  of  witnesses,  will  always  presume  that  the  inferior 
courts,  which  saw  and  heard  the  witnesses  examined,  decided 
coiTectly. 

In  the  case  of  Brooks  vs.  Calloway,  12  Leigh,  466,  decided 
December,  1841,  it  was  held :  Where  the  evidence,  on  the  trial 
of  an  issue,  is  conflicting,  and  the  court  is  satisfied  with  the 
verdict,  and  a  new  trial  is  asked  and  refused,  the  court  is  right 
not  to  certify  the  facts  proved. 

In  the  case  of  2'aliaferro  vs.  Franklin,  1  Grat.,  332,  decided 
January,  1845,  it  was  held :  The  judge  below  is  not  bound  to 
certify  the  facts  proved  on  the  trial  at  law,  on  refusing  to  grant 
a  new  trial,  where  the  case  depends  upon  the  credibility  of 
the  witnesses,  or  the  evidence  is  conflicting. 

In  the  case  of  Grayson  vs.  The  Commonwealth,  6  Grat.,  712, 
decided  December,  1849,  it  was  held:  Where  the  evidence  is 
contradictory,  and  the  verdict  is  against  the  weight  of  evidence, 
a  new  trial  may  be  granted  by  the  court  which  presides  at  the 
trial;  but  its  decision  is  not  the  subject  of  a  writ  of  error  or 
supersedeas,  or  examinable  by  any  appellate  court. 

Where  the  evidence  is  contradictory,  the  court  which  tries  the 


Citations  to  the  Code  op  Virginia.  881 

case  cannot  be  required  to  state,  in  a  bill  of  exceptions,  either 
the  evidence,  or  the  facts  proved  by  the  witnesses,  respectively; 
it  is  enough  to  state  that  the  evidence  was  contradictory. 

This  last  clause  since  overruled  by  Powell  vs.  Larry,  post. 

In  the  case  of  Pryor  vs.  Kuhn,  12  Grat.,  615,  decided  Sep- 
tember 11,  1855,  it  was  held:  In  an  action  at  law  the  parties 
waive  a  trial  by  jury,  and  submit  the  whole  matter  of  law  and 
fact  to  the  judgment  of  the  court.  An  exception  taken  to  the 
judgment  of  the  court  must  state  the  facts  proved,  not  the  evi- 
dence ;  and  it  will  be  treated  as  governed  by  the  principles  ap- 
plicable to  exceptions  taken  to  the  opinion  of  a  court,  overruling 
a  motion  for  a  new  trial,  on  the  ground  that  the  verdict  is  con- 
trary to  the  evidence. 

In  the  case  of  Wickham  c&  Goshorn  vs.  L^ms  Martin  (&  Co., 
13  Grat.,  427,  decided  August  25,  1856,  it  was  questioned :  What 
should  be  the  form  of  a  bill  of  exceptions  to  the  refusal  of  the 
court  to  gi-ant  a  new  trial  when  the  whole  case  has  been  sub- 
mitted to  the  court? 

In  the  case  of  Mitchell  vs.  Barrata  et  als.,  17  Grat.,  445,  de- 
cided May  14,  1867.  Parties  agree  to  dispense  with  a  trial  by 
jury  and  refer  the  whole  matter  of  law  and  fact  to  the  judgment 
of  the  court  under  the  statute,  and  all  the  evidence  is  stated  on 
the  record,  though  no  exception  is  taken  to  the  judgment  of  the 
court.  Held :  It  sufficiently  appearing  that  the  evidence  was 
intended  to  be  a  part  of  the  record,  it  will  be  so  considered, 
though  there  was  no  exception.  In  such  a  case  the  evidence, 
and  not  the  facts  proved,  should  be  stated.  The  opinion  of  the 
judge  who  decided  the  case  should  not  be  reversed  unless  it  is 
plainly  erroneous,  especially  if  the  evidence,  or  a  part  of  it,  be 
oral ;  and  more  especially  if  it  be  conflicting. 

In  the  case  of  Hodges  {Executor)  vs.  First  National  Bank, 
Richmond,  22  Grat.,  51,  decided  April  3,  1872,  it  was  held:  In 
a  case  in  which  a  jury  is  dispensed  with  and  the  case  is  sub- 
mitted for  trial  to  the  court,  upon  a  bill  of  exceptions  to  the 
judgment,  all  the  evidence  is  to  be  inserted  in  the  bill,  and  in 
the  appellate  court  it  will  be  considered  as  on  a  demurrer  to 
the  evidence.  In  such  a  case,  where  the  judgment  is  for  the 
plaintiff,  and  the  defendant  excepts,  if  it  appears  that  a  witnes^ 
for  the  defendant,  on  his  examination-in-cbief,  makes  a  state- 
ment of  a  fact  in  one  way  and  upon  his  cross-examination 
makes  it  in  a  materially  different  way,  the  first  statement  is  to 
be  rejected  and  the  last  taken  as  correct. 

In  the  case  of  Read  vs.  The  Commonwealth.,  22  Grat.,  924, 
decided  December  11,  1872,  it  was  held  :  Though  the  bill  of 
exceptions  taken  to  the  refusal  of  the  court  to  grant  a  new  trial 
purports  to  certify  the  facts,  yet  it  may  appear  from  the  bill  of 
exceptions  itself  that  the  evidence  is  certified ;  and  this  is  shown 
56 


882  ClTA'l'IONS  TO  THE  CODE  OF  VIRGINIA. 

where  the  facts  certified  are  contradictory.  In  such  case,  where 
the  evidence  is  certified,  the  appellate  court  will  not  reverse  the 
judgment  unless,  after  rejecting  all  the  parol  evidence  of  the  ex- 
ceptor, and  giving  full  faith  and  credence  to  that  of  the  adverse 
party,  the  decision  of  the  court  below  shall  appear  to  be  wrong. 

The  reference  to  23  Grat.,  352,  is  an  error. 

In  the  case  of  Backhouse  [Executor)  vs.  Selder,  29  Grat.,  581, 
decided  December  19,  1877,  it  was  held :  Where  neither  party 
requires  a  jury,  and  the  whole  matter  of  law  and  fact  is  heard 
and  determined,  and  judgment  given  by  the  court,  and  the  whole 
evidence  is  certified  by  the  court  in  the  bill  of  exceptions,  the 
bill  must  be  regarded  as  a  demurrer  to  evidence  by  the  plaintiff 
in  error. 

In  the  case  of  Danville  Bank  vs.  Waddill,  31  Grat.,  469,  de- 
cided February  6,  1879,  it  was  held,  p.  475 :  On  an  exception 
to  the  refusal  of  the  court  to  set  aside  the  verdict  and  grant  a 
new  trial  on  the  ground  that  the  verdict  is  contrary  to  the  evi- 
dence, if  the  evidence  and  not  the  facts  is  certified,  the  appel- 
late court  will  not  reverse  the  judgment  unless,  after  rejecting 
all  the  parol  evidence  of  the  exceptor,  and  giving  full  faith  and 
credit  to  that  of  the  adverse  party,  the  decision  of  the  court 
still  appears  to  be  wrong. 

The  reference  to  31  Grat.,  664,  is  to  a  case  which  merely 
cites,  ohiter  dictum,  conflicting  authorities  upon  the  rule  of  de- 
cision where  the  trial  court  proceeds  without  a  jury,  and  upon 
error  to  an  order  of  the  court  overruling  a  motion  for  a  new 
trial  on  the  ground  that  the  judgment  was  contrary  to  the  law  and 
the  facts,  the  court  sets  out  the  evidence  but  decides  nothing. 

In  the  case  of  Dean  vs.  The  Commo?noealth,  32  Grat.,  912,  de- 
cided July,  1879,  it  was  held :  Where,  in  a  criminal  case,  a  bill 
of  exception  taken  to  the  refusal  of  the  court  to  set  aside  the 
verdict  on  the  ground  that  it  is  not  warranted  by  the  evidence, 
sets  out  the  evidence  and  not  the  facts  proved,  the  appellate 
court  can  only  consider  the  evidence  introduced  by  the  Com- 
monwealth, and  will  not  reverse  the  judgment  unless  upon  that 
evidence  taken  to  be  true  the  decision  of  the  court  below  ap- 
pears to  be  erroneous. 

In  the  case  of  Baccigalupo  vs.  The  Commonwealth,  33  Grat., 
807,  decided  January,  1880,  it  was  held :  When  the  defence  of 
insanity  is  relied  on  by  the  prisoner,  the  burden  of  proof  is  on 
him ;  and  it  is  not  sufficient  to  raise  a  rational  doubt  on  the  sub- 
ject; but  he  must  satisfy  the  jury  that  he  was  insane  at  the  time 
the  act  was  committed  for  which  he  is  prosecuted.  Mere  cumu- 
lative evidence  is  not  sufficient  to  authorize  the  granting  a  new 
trial  to  the  prisoner;  and  in  this  case  the  new  evidence  offered 
is  merely  cumulative. 

In  the  case  of  Creekmur  vs.  Creekmur  et  als.,  75  Va.,  430,  de- 


Citations  to  the  Code  of  Virginia.  883 

cided  April  14,  1881,  it  was  held :  The  difference  between  the 
effect  of  a  demurrer  to  evidence  and  a  motion  for  a  new  trial 
founded  upon  a  certificate  of  the  evidence  is,  that  in  the  former 
case  the  demurrant  is  considered  as  admitting  the  truth  of  his 
adversary's  evidence,  and  all  inferences  to  be  drawn  therefrom 
by  a  jury,  and  as  waiving  all  his  evidence  which  conflicts  with 
that  of  his  adversary,  and  all  inferences  from  his  evidence  which 
do  not  necessarily  result  therefrom ;  whilst  in  the  latter  case,  the 
exceptor  waives  all  of  his  oral  evidence,  and  must  succeed,  if  at 
all,  by  showing  that  the  verdict  of  the  jury  is  erroneous,  upon 
the  testimony  of  the  successful  party. 

In  the  case  of  Powell,  who  sues  for,  etc.  vs.  Tarry's  Adminis- 
trator, 77  Va.,  250,  decided  March  15, 1883,  it  was  held:  Unless 
by  record  it  appears  that  points  decided  by  court  below  were 
saved  before  jury  retired,  they  cannot  be  reviewed  by  appellate 
court.  But  bill  of  exceptions  may  be  prepared  and  signed  at 
any  time  during  the  term. 

When  evidence  conflicts,  court  may  refuse  to  certify  the  facts 
proved ;  but  must  certify  the  evidence  on  motion  of  any  suitor. 

Unless  the  evidence  is  before  appellate  court,  it  cannot  pass 
on  instructions  given  or  refused. 

Lack  of  time  or  lapse  of  memory  is  no  excuse  for  a  judge's 
refusal  to  certify  the  evidence  on  the  trial  of  a  cause  before  him, 
or  to  perform  any  other  duty  imposed  on  him  by  law. 

To  compel  judge  to  certify  evidence  mandamxis  lies,  but  his 
refusal  is  error  reviewable  in  the  appellate  court  on  complaint 
of  jury  injured.  To  deny  certificate  of  evidence  is  to  deny 
suitor  his  right  of  appeal. 

Grayson's  Case,  6  Grat.,  712,  wherein  the  court  said:  "Where 
the  evidence  is  contradictory,  the  court  which  tries  the  case 
cannot  be  required  to  state  in  a  bill  of  exceptions  either  the  evi- 
dence or  the  facts  proved  by  the  witnesses  respectively.  It  is 
enough  to  state  that  the  evidence  was  contradictory ;  the  opinion 
was  mere  obiter  dictum,  and  is  not  sound  in  principle." 
•  Written  or  oral  declarations  of  a  party  to  a  suit  relevant  to 
the  issue,  and  against  his  interest,  are  admissible  as  evidence 
against  him. 

In  the  case  of  Taylor  vs.  The  Commonwealth,  11  Va.,  692, 
decided  September  13,  1883,  it  was  held :  Where  the  evidence, 
and  not  the  facts,  is  certified,  the  verdict  will  not  be  disturbed 
unless  it  appears  wrong,  after  rejecting  all  the  parol  evidence  of 
the  exceptor,  and  giving  full  faith  and  credit  to  the  Common- 
wealth's evidence. 

In  the  case  of  Proctor  vs.  Spratley,  78  Va.,  254,  decided  Jan- 
uary 10,  1884,  it  was  held:  When  court  below  certifies  the 
evidence,  not  the  facts,  the  judgment  will  not  be  reversed, 
unless,  after  rejecting  all  the   exceptor's    evidence  and  giving 


884  Citations  to  the  Code  of  Vieqinia. 

full  faith  to  the  adverse  party,  the  judgment  shall  appear 
wrong.  When  the  case  before  the  jury  depends  on  the  credi- 
bility of  witnesses,  and  new  trial  is  denied  by  court  below,  this 
court  will  not  reverse  the  judgment. 

In  the  .case  of  Farley  et  als.  vs.  Tillar,  81  Va.,  275,  decided 
January  7,  1886,  it  was  held :  Where  bill  of  exceptions  to  opin- 
ion of  court  below  refusing  new  trial  sets  out  the  evidence,  and 
not  the  facts,  this  court  will  not  reverse  the  judgment,  unless 
after  rejecting  all  the  exceptor's  parol  evidence,  and  giving  full 
faith  to  that  of  the  adverse  party,  the  said  judgment  still  ap- 
pears to  be  wrong. 

In  the  case  of  Hollingsworth  vs.  Sherman  et  als.,  81  Va.,  668, 
decided  December  17,  1885,  it  was  held:  Where  neither  party 
requires  a  jury,  and  the  whole  matter  of  law  and  fact  are  heard 
and  determined,  and  judgment  given  by  the  court,  and  the  whole 
evidence  is  certified  by  the  court  in  the  bill  of  exceptions,  the 
bill  must  be  regarded  as  a  demurrer  to  evidence  by  the  plaintiff 
in  error. 

In  the  case  of  Moses  vs.  Old  Dominion  Iron  and  Nail  Works 
Company ^d>2  Va.,  19,  decided  February  25,  1885,  it  was  held: 
Where,  under  the  rule  of  this  court,  to  reject  all  the  parol  evi- 
dence of  the  exceptor  to  the  refusal  of  the  court  below  to  award 
a  new  trial,  and  to  give  fuU  weight  and  credit  to  the  exceptee's 
evidence,  this  court  is  left  without  means  to  determine  whether 
the  court  below  erred  or  not,  the  judgment  of  the  court  below 
must  be  affirmed. 

In  the  case  of  Muse  vs.  Stern,  82  Va.,  33,  decided  January 
21,  1886.  At  first  trial  the  verdict  was  for  plaintiff,  and  was  set 
aside,  and  he  excepted ;  at  second  trial  verdict  was  for  defend- 
ant. Held:  If  the  first  verdict  was  erroneously  set  aside,  this 
court  will  enter  judgment  on  that  verdict,  and  will  set  aside  all 
subsequent  proceedings. 

Where  evidence  is  conflicting,  and  involves  credibility,  and 
the  verdict  is  set  aside,  and  the  evidence  is  certified,  this  court 
will  look  at  the  whole  evidence,  and  sustain  the  verdict,  unless 
it  be  against  the  law  or  the  evidence,  or  without  evidence. 

In  the  case  of  Weaver  vs.  Bliven,  82  Va.,  53,  decided  May  6, 
1886,  it  was  held :  Where  the  verdict  is  not  against  the  evidence, 
and  is  not  without  evidence  to  sustain  it,  and  the  trial  court  re- 
fused to  set  it  aside,  this  court  cannot  be  called  on  to  pass  on 
the  credibility  of  witnesses,  or  the  weight  of  the  testimony. 

In  the  case  of  Pruner  <&  Clark  vs.  Tlie  Comm,onwealth,  82 
Va.,  115,  decided  June  24,  1886,  it  was  held:  Where,  though 
the  bill  of  exceptions  claims  to  set  forth  the  facts  proved  upon 
the  trial,  it  is  apparent  that  the  evidence  is  certified  and  not 
the  facts,  this  court  must  look  only  to  the  evidence  of  the  ex- 
ceptee. 


Citations  to  the  Code  of  VmomiA.  885 

In  the  case  of  Hartman  vs.  StticMer,  82  Va.,  225,  decided 
July  8,  1886,  it  was  held :  On  motion  for  new  trial  of  issue  de- 
visavit  vel  non,  when  the  certificate  is  of  the  evidence  and  not 
of  the  facts,  the  verdict  must  stand,  unless,  after  rejecting  all 
the  exceptor's  parol  evidence,  and  giving  full  force  and  credit 
to  the  adverse  party's,  the  decision  of  the  court  below  shall  ap- 
pear to  be  wrong. 

In  the  case  of  The  Virginia  Mining  and  Iron  Company  vs. 
Hoover,  82  Va.,  449,  decided  October  7,  1886,  it  was  held: 
Where  neither  party  requires  a  jury,  and  the  whole  matter  of 
law  and  fact  is  heard  and  determined,  and  judgment  is  given, 
by  the  court,  and  the  entire  evidence  is  certified  by  the  court  in 
the  bill  of  exceptions,  the  bill  must  be  regarded  as  a  demurrer 
to  evidence  by  the  plaintiff  in  error.  In  such  a  case  the  demur- 
rant admits  the  truth  of  all  demurree's  evidence  and  all  reason- 
able and  proper  inference  therefrom,  and  waives  all  his  own 
evidence  which  conflicts  with,  or  tends  to  make  &  case  diflferent 
from,  the  case  made  by  the  demurree's  evidence. 

In  the  case  of  Magarity  vs.  Shipmaii,  82  Va.,  806,  decided 
January  27,  1887,  it  was  held :  In  the  case  here  there  is  no  bill 
of  exceptions  and  no  motion  for  a  new  trial.  But  the  case  hav- 
ing been  referred  to  a  referee,  the  proofs  were  taken  in  the 
form  of  depositions  and  a  report  was  made  by  him,  and  no  ex- 
ception taken  thereto  by  either  party.  Such  a  case  cannot  be 
reviewed  by  this  court,  and  will  be  dismissed. 

In  the  case  of  McArter  vs.  Grigsby,  84  Va.,  159,  decided 
December  1,  1887,  it  was  held:  Upon  an  appeal  from  refusal  of 
trial  court  to  set  aside  the  verdict  and  grant  a  new  trial,  the 
facts  proved  must  be  presented  to  this  court  by  a  bill  of  ex- 
ceptions which  states  that  those  facts  are  all  the  facts;  and 
when  the  evidence,  and  not  the  facts,  is  certified,  it  must  appear 
from  the  bill  of  exceptions,  either  by  direct  statement  or  clear 
inference,  that  the  evidence  presented  is  all  the  evidence,  else 
this  court  cannot  know  upon  what  the  lower  court  based  its 
decision,  and  the  judgment  appealed  from  must  be  presumed  to 
be  right. 

When  the  circuit  court,  on  appeal  fromthie  judgment  of  the 
county  court,  reverses  it,  but  files  no  op  inon,  and  when,  on 
appeal  from  the  judgment  of  the  circuit  court  to  this  court, 
there  is  no  argument  here  for  the  defendant  in  eiTor,  the  case 
must  be  considered  here  upon  the  record  as  made  in  the  county 
court,  and  the  judgment  of  that  court  must  be  presumed  to  be 
right  unless  error  be  apparent  on  the  face  of  the  record,  or  ap- 
pear from  a  bill  of  exceptions  properly  taken. 

In  the  case  of  Southwest  Improqement  Company  vs.  Smith's 
Administrator,  85  Va.,  306,  decided  August  23,  1888,  it  was 
held:  Where  motion  to  set  aside  verdict  as  coatrary  to  evi- 


886  Citations  to  the  Code  of  Virginia. 

dence  is  overruled,  the  mover  excepts  and  evidence  is  certified, 
this  court  will  consider  the  case  as  if  it  were  a  demurrer  to  evi- 
dence by  the  exceptor  under  this  section,  though  lower  court 
rendered  its  judgment  before  this  code  took  effect,  because  this 
section  takes  away  no  vested  right,  but  merely  prescribes  a  rule 
of  practice. 

In  the  case  of  Tucker  vs.  Sandidge  {Curator),  85  Va.,  546, 
decided  December  13,  1888.  When  at  trial  jury  finds  against 
the  will,  verdict  is  set  aside  on  motion  of  plaintiff;  at  second 
trial  jury  finds  for  the  will.  Motion  for  defendants  to  set  aside 
the  verdict  is  overruled,  and  the  defendants  having  excepted, 
and  the  evidence  (not  the  facts)  certified  on  appeal.  Held :  Un- 
der this  section  plaintiff  in  error's  exception  must,  in  consider- 
ing the  decision  of  the  court  below  setting  aside  the  first  verdict, 
be  treated  as  a  demurrer  to  evidence,  and  all  his  oral  evidence 
treated  as  waived,  and  all  his  adversary's  evidence,  and  all  fair 
inferences  therefrom,  be  treated  as  true,  instead  of  considering 
the  whole  evidence  at  the  first  trial  as  under  the  rule  before  this 
section  was  enacted. 

In  the  case  of  Adams  et  als.  vs.  Hays  et  als.,  86  Va.,  153,  de- 
cided June  13,  1889,  it  was  held :  Plaintiff  sold  the  defendant's 
bricks  at  an  agreed  price  per  one  thousand,  "kiln  count."  For 
the  former  it  was  testified  that  "kiln  count"  meant  an  estimat- 
ed count  of  the  brick  while  in  the  kiln ;  for  the  latter,  that  an 
actual  count  of  the  brick  from  the  kiln  was  meant.  Held :  Un- 
der this  section,  prescribing  as  the  rule  of  decision  the  rule  as 
upon  demurrer  to  evidence,  "kiln  count"  must  be  construed  to 
mean  a  count  by  estimation  while  the  bricks  were  in  the  kiln. 

In  the  case  of  Mears  c&  Zewis  vs.  Dexter,  86  Va,,  828,  decid- 
ed April  17,  1890,  it  was  held :  This  section  requires  the  appel- 
late court  to  look  first  to  the  proceedings  and  the  whole  evi- 
dence on  the  first  trial,  and,  if  there  be  error  in  setting  aside 
the  verdict  on  that  trial,  to  set  aside  and  annul  all  proceedings 
subsequent  to  said  verdict,  and  to  enter  judgment  thereon. 
Held :  The  rule  of  this  act,  which  operates  retrospectively,  ap- 
plies to  all  cases  which,  though  decided  by  the  court  below  be- 
fore, yet  come  before  this  court  on  error  since,  the  passage  of 
said  act. 

In  the  case  of  Woods  vs.  The  Commonwealth,  86  Va.,  929,  de- 
cided June  19,  1890,  it  was  held :  "Where  the  evidence,  not  the 
facts,  is  certified,  the  appellate  court  must  dispose  of  the  case 
as  on  a  demurrer  to  evidence. 

In  the  case  of  Vawter  vs.  The  Commonwealth,  87  Va.,  245, 
decided  December  11,  1890,  it  was  held:  This  court  cannot  re- 
view a  refusal  of  the  court  below  to  give  an  instruction,  when 
the  evidence  or  the  facts  are  not  certified. 

In  the  case  of  Tucker  vs.  The  Cormnonwealth,  88  Va.,  20,  de- 


Citations  to  the  Code  of  Virginia.  887 

cided  June  18,  1891,  it  was  held:  Where  exceptor's  evidence 
does  not  conflict  with  exceptee's,  or  with  any  inference  which 
the  jury  might  have  reasonably  drawn  therefrom,  such  evidence 
is  not  waived  by  the  rule  under  this  section. 

In  the  case  of  i\^  cfc  W.  Railroad  Co.  vs.  Groseclose's  A  d- 
ministrators,  88  Va.,  267,  decided  July  16,  1891,  it  was  held: 
Where  the  evidence,  and  not  the  facts,  is  certified,  and  the  de- 
fendant in  such  action  is  the  exceptor,  any  evidence  that  it  may 
have  adduced  tending  to  show  contributory  negligence  on  the 
part  of  the  exceptee,  and  contrary  to  the  exceptee's  evidence, 
must  be  rejected. 

In  the  case  of  Lyles  vs.  The  Commonwealth,  88  Va.,  396,  de- 
cided November  12,  1891,  it  was  held:  Where  the  evidence, 
and  not  the  facts,  is  certified,  the  accused  must  be  considered 
here,  on  review  of  the  refusal  of  the  court  below  to  grant  a  new 
trial,  as  admitting  the  truth  of  all  the  Commonwealth's  evidence, 
and  as  waiving  all  his  own  which  conflicts  therewith,  even  where 
one  of  the  Commonwealth's  witnesses  admitted  at  the  trial  that 
she  had  made  different  statements. 

In  the  case  of  Blakeley  et  als.  vs.  3f orris,  89  Va.,  717,  decided 
March  9,  1893.  As  the  plaintiff  must  recover,  if  at  all,  upon  the 
strength  and  sufficiency  of  his  own  title,  and  not  upon  the  in- 
sufficiency of  the  defendant's  title,  and  the  evidence  adduced  in 
the  cause  being  contradictory,  the  jury  found  for  the  defendant. 
Held:  That  under  the  rule.  Section  3484,  this  court  will  not 
disturb  the  verdict,  there  having  been  no  correct  instructions 
on  the  law  given  to  the  jury. 

Section  3485. 

In  the  case  of  Moss  and  Wife  et  als.  vs.  Moorman's  Adminis- 
trator et  als.,  24  Grat.,  97,  decided  November,  1873,  it  was  held: 
There  is  a  decree  against  an  administrator  and  his  sureties ;  and 
on  appeal  by  plaintiffs  decree  is  reversed,  and  the  administrator 
is  held  liable  for  a  larger  amount  than  was  decreed  against  him ; 
though  the  decree  is  also  reversed  in  favor  of  a  purchaser  of 
land  from  an  administrator.  Whilst  the  appellate  court  reverses 
the  decree  so  far  as  it  is  erroneous,  it  will  affirm  it  so  as  to  con- 
tinue the  lien  of  the  decree  for  the  security  of  the  pro  tanto  of 
the  amounts  which  may  be  found  due  by  the  parties  respectively 
against  whom  the  said  decree  was  rendered. 

In  the  case  of  Thompson  vs.  Chapman,  11  Va.  Law  Journal, 
667,  decided  April  21,  1887,  it  was  held :  Where  a  decree  is  re- 
versed in  part  and  affirmed  as  to  the  residue,  the  reversal  in 
part  does  not  destroy  the  lien  of  so  much  of  the  decree  as  is 
unreversed  or  affirmed.  But  this  principle  does  not  apply  to  a 
judgment  at  law  which  has  been  reversed  and  a  new  trial 
awarded. 


888  Citations  to  the  Code  of  Virginia. 

Section  3486. 

For  the  reference  to  10  Leigh,  394  and  400,  see  ante,  Section 
3470. 

In  the  case  of  Jeter  vs.  Langhorn,  5  Grat.,  193,  decided  July, 
1848,  it  was  held :  An  injunction  is  dissolved,  and  on  appeal  the 
decreee  is  affirmed.  Ten  per  cent,  damages  is  to  be  computed 
from  the  time  when  the  injunction  was  granted  to  the  date  of 
the  dissolution  thereof  in  the  court  below;  but  not  for  the  time 
it  was  pending  in  the  appellate  court. 

Section  3487. 

In  the  case  of  Smith  vs.  Hutchinson  et  als.,  78  Va.,  683,  de- 
cided March  13,  1884,  it  was  held  :  On  reversal  or  affirmance  of 
judgment  of  county  court,  the  cause  must  be  retained  by  circuit 
court,  and  not  remanded  except  by  consent  or  for  cause. 

In  the  case  of  Pettit  vs.  Cowherd,  83  Va.,  20,  decided  March 
10,  1887,  it  was  held:  On  reversal  or  affirmance  of  judgment  of 
county  court  the  cause  must  be  retained  in  circuit  court,  and  not 
remanded  except  by  consent  or  for  cause,  which  consent,  or 
cause,  must  be  stated  in  remanding  order. 

Section  3488. 

In  the  case  of  Hudson  vs.  Ross  &  Co.,  1  Wash.,  74,  decided 
at  the  spring  term,  1792.  A  motion  was  made  that  the  clerk 
might  be  permitted  to  give  a  certificate  of  the  judgment  to  be 
entered  in  the  district  court  then  sitting.  Held:  This  is  a 
motion  which  is  never  granted  without  strong  reasons.  In  gen- 
eral it  is  not  permitted,  as  we  may  change  our  opinions  during 
the  term.  It  is  often  granted  if  the  delay  would  endanger  the 
debt. 

In  the  case  of  The  Bank  of  Virginia  vs.  Craig,  6  Leigh,  399, 
decided  May,  1835,  it  was  held :  The  court  cannot  examine  the 
propriety  of  a  decree  made  at  a  former  term  inter  partes,  nor  set 
aside  such  decree  of  a  former  term,  on  the  ground  that  it  de- 
cided matters  coram  nonjudice  at  the  time. 

In  the  case  of  ^Vynn  vs.  Wyatt's  Administrators,  11  Leigh, 
584,  decided  February,  1841,  it  was  held :  After  this  court  had 
reversed  a  judgment  and  remanded  a  case  to  the  court  below 
for  further  proceedings  there,  and  certificate  of  that  judgment 
had  been  sent  by  the  clerk  to  the  court  below,  a  rehearing  was, 
on  motion  of  defendant  in  error,  directed  here,  whereupon  this 
court  revoked  the  certificate  of  its  former  judgment,  and  di- 
rected the  court  below  to  surcease  proceedings  till  further  or- 
der; and  plaintiff  in  error,  being  now  a  non-resident,  ordered 
that  service  of  this  order  on  the  counsel  who  appeared  for  him 
on  the  former  argument  should  be  as  sufficient  service. 


Citations  to  the  Code  of  Virginia.  889 

Section  3490. 

In  the  case  of  White  vs.  Atkinson,  2  Call,  376  (2d  edition, 
316),  decided  November  15,  1800,  it  was  held:  The  court  of 
chancery  cannot  make  any  alterations  in  the  terms  of  a  decree 
of  this  court  certified  therein,  in  order  that  a  final  decree  may 
be  made  in  the  cause. 

In  the  case  of  Price  vs.  Campbell,  5  Call,  115,  decided  April, 
1804,  it  was  held :  The  court  of  chancery  cannot,  upon  the  same 
facts,  alter  a  decree  of  the  court  of  appeals. 

In  the  case  of  Murdock  vs.  Ilendron's  Executors,  4  H.  &  M., 
200,  decided  October,  1809,  it  was  held :  If  a  cause  be  remanded 
to  an  inferior  court,  and  a  new  trial  be  directed,  the  superior 
court  must  be  presumed  to  have  thought  the  declaration  suffi- 
cient ;  consequently,  on  the  new  trial,  or  on  a  second  appeal,  no 
exception  can  be  taken  to  the  appeal. 

In  the  case  of  Campbell  vs.  Price  et  als.,  3  Munf.,  227,  decided 
April  1,  1812,  it  was  held:  The  court  of  chancery  cannot 
correct,  on  motion  or  by  bill  of  review,  any  error  apparent  on 
the  face  of  the  proceedings  in  a  decree  which  has  been  affirmed 
by  the  court  of  appeals. 

In  the  case  of  Lanier,  Shelton  c&  Cocke  vs.  Cocke,  Crawford  c& 
Company,  6  Munf.,  580,  decided  March  30,  1820,  it  was  held: 
After  the  court  of  appeals  has  passed  upon  a  case  and  remanded 
the  cause  for  a  new  trial  upon  the  general  issue,  a  demurrer 
to  the  declaration,  or  a  plea  in  abatement,  upon  the  ground  that 
the  Christian  names  of  the  respective  parties  are  not  mentioned 
therein,  ought  not  to  be  received. 

In  the  case  of  Epes^s  Administrator  vs.  Dudley,  4  Leigh,  145, 
decided  January,  1833,  it  was  held :  If  proceedings  on  a  judg- 
ment at  law  be  enjoined  by  a  court  of  chancery,  and  the  in- 
junction be  afterwards  dissolved,  and  on  appeal  taken  to  the 
court  of  appeals,  the  order  of  dissolution  is  affirmed  in  omnibus  ; 
an  execution  may  be  sued  out  on  the  judgment  at  law,  before 
the  decree  of  affirmation  is  entered  up  in  the  court  of  chancery. 

In  the  case  of  Towner  vs.  Lane's  Administrator,  9  Leigh,  262, 
decided  February,  1838,  which  is  here  quoted  as  an  authority, 
the  judges  were  equally  divided,  so  the  case  is  valueless. 

In  the  case  of  Deneufville's  Administrator  vs.  Travis  {Ad- 
ministrator), 5  Grat.,  28,  decided  April,  1848.  Upon  an  appeal 
from  a  final  decree  made  upon  the  report  of  a  commissioner 
to  which  there  were  various  exceptions  by  the  appellant  to 
the  report ;  and  the  decree  is  reversed  and  the  cause  remanded 
for  the  necessary  inquiries  to  be  made  in  relation  to  the  subject 
of  that  exception.  Held :  The  decree  concluded  all  other  ques- 
tions. 

In  the  case  of  Burton  vs.  Brown's  Executors,  22  Grat.,  1,  de- 
cided March  20,  1872,  it  was  held:   An  appeal  by  one  party 


890  Citations  to  the  Code  of  Virginia. 

from  a  decree  overruling  some  exceptions  to  a  commissioner's 
report,  and  sustaining  others,  and  recommitting  the  report, 
brings  up  the  whole  cause ;  and  the  decree  of  the  court  of  ap- 
peals, affirming  the  decree  of  the  court  below,  concludes  all 
questions  previously  decided,  whether  in  favor  of  the  appel- 
lants or  appellees. 

In  the  case  of  CampbelVs  Executors  vs.  CampbeWs  Executor^ 
22  Grat.,  649,  decided  September  25,  1872,  it  was  held:  The 
decree  of  the  court  of  appeals  upon  a  question  decided  by  the 
court  below  is  final  and  irresistible ;  and  upon  a  second  appeal 
in  the  cause,  the  question  decided  upon  the  first  appeal  cannot 
be  reversed.  In  such  a  case  the  conclusiveness  of  the  decree 
of  the  court  of  appeals  is  the  same,  whether  the  first  appeal 
was  from  a  final  or  interlocutory  decree  of  the  court  below. 
All  the  decrees  of  the  appellate  court  are  in  their  nature  final, 
except,  possibly,  where  that  court  disposes  only  of  part  of  the 
case  at  one  term  and  reserves  it  for  further  and  final  action  at 
another. 

In  the  case  of  Bank  of  Old  Dominion  vs.  Mc  Veigh,  29  Grat., 
546,  decided  December  13,  1877,  it  was  held,  p.  554-'55.  It  is 
settled  that  whatever  is  decided  here  upon  one  appeal  cannot 
be  re-examined  in  a  subsequent  appeal  of  the  same  suit.  Such 
subsequent  appeal  brings  up  for  consideration  the  proceedings 
of  the  court  below  after  the  mandate  of  this  court. 

The  reference  to  32  Grat.,  657-'61,  is  an  error. 

For  the  reference  to  76  Va.,  892  and  894,  see  ante,  Sec- 
tion 3475. 

In  the  case  of  Wew  York  Life  Insurance  Company  vs.  C.  ^\ . 
Clemm.it  et  ux.,  11  Va.,  366,  decided  April  5,  1883,  it  was  held, 
p.  373-'74 :  It  is  a  settled  rule  that  decrees  of  the  court  of  ap- 
peals on  questions  decided  by  the  court  below  are  conclusive, 
and  on  second  appeal  those  questions  cannot  again  be  raised. 

In  the  case  of  Frazier  vs.  Frazier  et  als.,  11  Va.,  775,  decided 
October  11,  1883,  it  was  held,  p.  784:  Decree  of  appellate 
court  upon  questions  raised  by  court  below  is  final  and  irre- 
vocable. Upon  second  appeal,  questions  decided  by  the  first 
cannot  be  reversed.  Its  decision  is  not  only  final  as  to  the 
decree  appealed  from,  but  ^-Iso  as  to  all  prior  orders  and  de- 
crees in  the  cause  between  the  appellants  and  appellees.  But 
this  rule  has,  of  course,  no  application  where  a  different  ques- 
tion arises,  or  the  same  question  arises  between  different  parties. 

In  the  case  of  McCormick's  Executor  vs.  Wright's  Executor, 
79  Va.,  524,  decided  October  7,  1884,  it  was  held,  p.  533:  It  is 
a  settled  rule  that  decrees  of  the  court  of  appeals  on  questions 
decided  by  the  court  below  are  conclusive,  and  on  second  ap- 
peal those  questions  cannot  again  be  raised. 

In  the  case  of  EJfinger  vs.  Kenney  {Trustee),  79  Va.,  551,  de- 


J 


Citations  to  the  Code  of  Virginia.  891 

cided  November  20,  1884,  it  was  held,  p.  553:  Where  objection 
for  want  of  liens  was  not  raised  in  court  below  when  decree  of 
sale  was  entered,  and  on  appeal  that  decree  has  been  affirmed, 
such  affirmance  is  a  final  determination  between  the  parties  of 
all  questions  which  were  or  might  have  been  raised  on  that  ap- 
peal. 

In  the  case  of  Cohhs  [Assignee)  vs.  Gilchrist's  Administrator 
et  als.,  80  Va.,  503  and  507,  decided  June  11,  1885 :  By  decree 
H.'s  land  was  subject  to  certain  liabilities.  H.  devised  his  lands 
to  L.  and  to  J,  Between  them  partition  was  made.  L.  was  ad- 
judicated a  bankrupt,  C,  her  assignee,  became  a  party  to  the 
suit.  In  1876  a  decree  apportioned  the  liabilities  between  the 
lands  of  L.  and  J.,  and  directed  sale.  Sale  was  made  and  pro- 
ceeds collected.  Then  a  personal  fund  amenable  to  same  lia- 
bilities turned  lip  and  was  applied,  causing  a  surplus.  J.  and 
one  S.  had  a  contest  for  said  surplus,  which,  in  1882,  was  ad- 
judged to  J.  During  this  contest  C.  was  neutral,  but  more 
than  two  years  after  the  accrual  of  his  right  of  action,  he,  as 
L.'s  assignee,  claimed  said  surplus  as  part  of  L.'s  assets,  be- 
cause L.'s  lands  had  contributed  more  than  their  proportion  to 
satisfy  said  liabilities.  Court  below,  in  1883,  decreed  against 
C.  On  appeal,  held:  Decree  of  1883  could  not  be  reversed 
without  disturbing  decree  of  1876,  affirmed  by  dismissal  of 
appeal.  Suit  by  assignee  for  said  surplus  was  barred  by  lapse 
of  two  years  before  the  suit  was  brought. 

In  the  case  of  Stuart  (&  Palmer  vs.  Preston  et  als.,  80  Va., 
625,  decided  June  18,  1885,  it  was  held :  It  is  the  well-settled 
rule  of  this  court,  that  a  question  which  has  been  decided  upon 
the  first  appeal  in  any  cause  cannot  be  reviewed  or  reversed 
upon  any  subsequent  appeal  in  the  same  cause. 

In  the  case  of  Smith  vs.  Snyder,  82  Va.,  614,  decided  Decem- 
ber 2,  1886,  it  was  held :  Where  instructions  given,  or  verdict 
rendered,  at  trial  in  the  court  below,  are,  on  appeal,  pronounced 
erroneous,  it  is  improper,  at  a  subsequent  trial,  the  evidence  be- 
ing the  same,  to  give  the  same  instructions,  or  to  enter  up  judg- 
ment on  the  same  verdict. 

In  the  case  of  Piehl  vs.  Marchant,  87  Va.,  447,  decided  Feb- 
ruary 12,  1891,  it  was  held:  When  matter  alleged  in  the  second 
suit  between  the  same  parties  was  either  actually  litigated,  or 
might  have  been,  under  the  issues,  in  the  first  suit,  the  judg- 
ment in  the  first  may  be  set  up  as  a  bar  to  the  second  suit. 

In  the  case  of  Foster  vs.  Tlie  City  of  Manchester,  89  Va.,  92, 
decided  June  16,  1892,  it  was  held :  A  judgment  of  a  court  of 
competent  jurisdiction  upon  a  question  directly  involved  is  con- 
clusive of  that  question  in  another  suit  between  the  same  jmrties. 

In  the  case  of  Lore  et  als.  vs.  Hash  et  als.,  89  Va.,  277,  decided 
July  6,  1892,  it  was  held:  Where  a  decree  has  been  affirmed 


892  Citations  to  the  Code  op  Virginia. 

by  this  court  on  appeal,  it  becomes  res  adjudicata,  and  no  error 
in  it  can  be  corrected  by  a  rehearing  in  the  court  below. 

In  the  case  of  Carter  vs.  Hough  <&  Co.  et  als.,  89  Ya.,  503, 
decided  December  15,  1892,  it  was  held:  Matters  once  deter- 
mined on  appeal  in  this  court  cannot  be  reopened ;  and  this  is 
true,  whether  those  matters  were  actually  adjudicated  or  not;  if 
they  could  have  been  adjudicated  in  that  suit,  they  are  equally 
settled. 

Section  3492. 

In  the  case  of  Armistead  vs.  Bailey  et  als.,  83  Va.,  242,  de- 
cided April,  1887,  it  was  held :  Neither  bills  of  review  nor  peti- 
tions for  rehearing  lie  for  assignees. 

CHAPTEE   CLXXL 

Section  3493. 

In  the  case  of  Jones's  Executors  vs.  Clarke  et  als.,  25  Grat., 
642,  decided  January  7,  1875,  it  was  held,  p.  675 :  A  demurrer 
to.  a  bill  in  equity,  in  the  form  given  in  the  statute,  is  sufficient. 

Section  3494. 

In  the  case  of  Newel  vs.  Wood  {Governor),  1  Munf.,  555,  de- 
cided May  9,  1810,  it  was  held :  The  court  of  appeals  has  juris- 
diction to  revise  any  judgment  on  a  bond,  provided  the  penalty 
amount  to  the  sum  limited  by  law.  The  statute  was  passed  to 
change  this. 

In  the  case  of  Heathe  {Executor)  vs.  Blaher  <&  Kimhler,  2  Va. 
Cases,  215,  decided  by  the  General  Court,  June,  1820,  it  was 
held  :  Debt  on  a  penal  bill  for  one  hundred  dollars  conditioned 
to  pay  forty-seven  dollars.  The  defendant  moved  the  court  to 
stay  proceedings,  because  the  penalty  was  inserted  for  the  pur- 
pose of  giving  the  court  a  jurisdiction  which  the  law  withheld. 
Decided  that  the  superior  court  ought  not  to  sustain  the  motion, 
but  declined  deciding  whether  the  fact  alleged  would  avail  if 
pleaded. 

In  the  case  of  Fleming  vs.  Toler,  7  Grat.,  310,  decided  April 
21,  1851,  it  was  held :  The  penalty  and  condition  of  a  bond  for 
the  payment  of  money  is  in  the  same  sum.  It  is  proper  to  treat 
it  as  a  single  bill,  and  to  give  judgment  for  the  amount  of  the 
bond  with  interest  from  the  time  of  payment. 

Section  3495. 
See  the  references  to  Section  2990. 


Citations  to  the  Code  op  Yirginia.  893 

TITLE  XLIX. 

CHAPTER   CLXXIL 

Section  3520. 
In  the  case  of  Craigeris  Executor  vs.  IxM,  12  Leigli,  627,  de- 
cided August,  1841,  it  was  held:  Though  no  action  lies  for 
clerk's  fees,  till  they  shall  be  put  into  an  officer's  hands  for  col- 
lection, and  he  has  returned  that  they  cannot  be  levied  by  dis- 
tress, yet  the  clerk  may  set  them  off  against  an  action  on  his 
bond  to  the  party  from  whom  they  are  due.  And  if  the  clerk's 
fees  were  never  put  into  an  officer's  hands  for  collection,  there 
was  not  until  the  statute  of  1839  any  limitation  to  the  clerk's 
claim  for  them. 

CHAPTER  CLXXIII. 

Section  3539. 

In  the  case  of  Vance  y^,.  Bird  et  als.,  4  Munf.,  364,  decided 
February  1,  1815,  it  was  held :  Upon  a  rule  requiring  security 
for  costs,  if  sufficient  security  be  tendered  in  court,  at  the  first 
calling,  after  the  expiration  of  the  sixty  days,  it  ought  to  be  re- 
ceived, and  the  suit  ought  not  to  be  dismissed. 

In  the  case  of  Jacobs  vs.  Sale,  1  Va.  (Gilmer),  123,  decided 
October  19, 1820,  it  was  held :  Error  to  rule  a  defendant  to  trial 
on  a  motion  for  continuance,  when  the  plaintiff  has  failed  until 
the  term  at  which  the  motion  is  made  to  give  security  for  costs, 
after  a  rule  to  do  so. 

In  the  case  of  Heed's  Lessee  vs.  See^  1  Va.  Cases,  123,  decided 
by  the  General  Court,  it  was  held :  Where  plaintiffs  ordered  by 
court  to  give  security  for  costs  within  sixty  days,  but  failed  to  do 
so,  but  before  the  court  dismissed  the  suit  offered  the  requisite 
security,  it  should  have  been  accepted  and  the  suit  retained. 

In  the  case  of  Evans  vs.  Bradshaw  et  als.,  10  Grat.,  207,  de- 
cided July,  1853,  it  was  held :  Upon  a  motion  against  a  plaintiff  in 
equity  for  security  for  costs,  a  bill  of  exceptions  is  taken  to  the 
opinion  of  the  court,  which  states  the  evidence  introduced  on 
the  motion.  There  is  no  objection  to  this  mode  of  putting  the 
evidence  upon  the  record. 

In  the  case  of  Anderson  vs.  Johnson  et  als.,  32  Grat.,  558,  de- 
cided November,  1879,  it  was  held,  p.  573 :  Where,  on  the  mo- 
tion of  the  defendant  in  an  attachment  case,  the  plaintiff,  who  is 
a  non-resident  of  the  State,  is  ordered  to  give  security  for  the 
costs  of  the  suit  within  sixty  days,  and  fails  to  do  so,  his  bill 
should  be  dismissed,  and  it  is  error  to  hear  and  decide  the  case. 

On  reversing  the  decree  and  remanding  the  cause,  the  appel- 
late court  will  not  direct  the  suit  to  be  dismissed  at  once  for  the 


894  Citations  to  the  Code  of  Virginia. 

failure  of  the  plaintiff  to  give  security  for  costs,  but  will  direct 
that  he  be  allowed  a  reasonable  time  to  comply  with  the  order. 

Section  3543. 
In  the  case  of  Bills  vs.  Hai^is,  2  Va.  Cases,  26,  decided  by 
the  General  Court,  November,  1815,  it  was  held :  In  assault  and 
battery,  the  jury  found  for  the  plaintiff  six  cents  and  the  costs. 
They  had  no  right,  under  our  statute,  to  find  the  costs. 

Section  3544. 

In  the  case  of  Maitland  vs.  McDearman,  1  Ya.  Cases,  131, 
decided  by  the  General  Court,  it  was  held :  Where  the  amount 
sued  for  was  over  one  hundred  dollars  and  verdict  was  for 
less  the  court  held:  Verdict  should  be  arrested  because  the 
verdict  did  not  show  that  the  account  was  reduced  by  set-off. 

In  the  case  of  J^eff  vs.  Talbot,  1  Va.  Cases,  140,  decided  by 
the  General  Court,  it  was  held :  Where  the  arbitrators  found  an 
award  of  one  hundred  dollars,  the  award  was  confirmed  and 
made  the  judgment  of  the  court. 

In  the  case  of  Pendred's  Administrators  vs.  Pendred^  2  Va. 
Cases,  93,  decided  by  the  General  Court,  November,  1817,  it  was 
held :  Where  damages  for  breach  of  contract  are  uncertain,  and 
therefore  unknown,  till  ascertained  by  verdict,  the  superior 
court  has  jurisdiction,  although  the  verdict  is  for  less  than  one 
hundred-  dollars. 

In  the  case  of  Larowe  vs.  Harding's  Administrators,  2  Va. 
Cases,  203,  decided  June,  1820,  by  the  General  Court,  it  was 
held :  Where  a  debt  is  reduced  by  payment  below  one  hundred 
dollars,  the  superior  court  has  not  jurisdiction  to  render  judg- 
ment on  the  verdict. 

In  the  case  of  Acker's  Assignee  vs.  Highley,  2  Va.  Cases, 
255,  decided  by  the  General  Court,  June,  1821,  it  was  held : 
Debt  for  a  sum  more  than  one  hundred  dollars,  reduced  to  a 
sum  below  it  by  a  set-off,  the  superior  court  has  jurisdiction 
to  render  judgment  on  the  verdict. 

Section  3545. 
In  the  case  of  Middleton  vs.  Johns,  4  Grat.,  129,  decided 
July,  1847,  it  was  held :  A  general  judgment  for  costs  against 
two  defendants  in  ejectment  is  proper,  though  one  of  them  did 
not  enter  himself  a  defendant  until  there  had  been  one  trial  of 
the  cause,  and  a  large  portion  of  the  costs  had  been  incurred. 

Section  3546. 
In  the  case  of  Pates  vs.  St.  Clair ^  11  Grat.,  22,  decided  April, 
1854,  it  was  held :  It  was  not  improper,  even  before  the  act  of 
1849,  Code,  p.  706,  Section  9,  to  render  judgment  for  costs  in 


Citations  to  the  Code  of  Virginia.  895 

favor  of  the  defendant  against  a  person  for  whose  benefit  a  suit 
was  brought,  when  the  defendant  succeeded  in  the  case. 

In  a  suit  brought  in  the  name  of  one  person  for  the  benefit 
of  another,  a  judgment  stating  that  the  parties  appeared  by 
their  attorneys,  and  that,  by  consent,  the  suit  was  dismissed, 
and  judgment  was  rendered  for  defendant's  costs  against  the 
person  for  whose  benefit  the  suit  was  brought,  it  must  be  held 
that  the  consent  is  the  consent  of  the  latter,  and  that  the  judg- 
ment is  proper. 

Section  3552. 

In  the  case  of  Thon  vs.  The  Commonwealth,  11  Va.,  289,  de- 
cided March  15,  1883,  it  was  held:  Act  approved  March  12, 
1878,  Acts  1877-78,  Chapter  183,  Section  2,  page  174,  provid- 
ing that  the  attorney-general  shall  receive  a  salary  of  $2,500 
annually  for  his  services,  and  shall  not  be  entitled  to  any  fur- 
ther compensation  therefor,  refers  to  salaries  payable  out  of  the 
State  treasury,  and  not  to  fees  taxed  in  the  costs  as  fees  of  at- 
torneys on  the  winning  side  in  any  case,  under  Code,  Chapter 
181,  Section  13.  The  laws  requiring  such  fees  to  be  taxed  for 
the  benefit  of  the  Commonwealth  have  never  been  repealed  nor 
amended,  and  the  losing  suitor  has  them  to  pay,  whether  they 
go  into  the  State  treasury  or  to  the  attorney-general.  But  the 
laws  requiring  such  fees  to  be  taxed  in  the  costs  and  to  be  paid 
to  said  attorney-general  are  also  unrepealed. 

Section  3554. 

In  the  case  of  Mahone  vs.  Long,  3  Eand.,  557,  decided  De- 
cember, 1825,  it  was  held :  Where  the  appellant  fails  to  bring  up 
a  copy  of  the  record  within  the  time  limited  by  law,  and  it  is 
filed  by  the  appellee,  who  obtains  a  dismission  of  the  appeal, 
the  fee  of  the  clerk  of  the  chancery  court  for  the  copy  of  the 
record  so  filed  may  be  taxed  in  the  bill  of  costs  as  a  part  of  the 
cost  of  defending  the  appeal ;  and  the  same  rule  exists  where 
the  record  is  brought  up  by  the  appellant. 

In  the  case  of  Leachman  vs.  The  Overseers  of  the  Poor  of 
Prince  William  County,  2  Va.  Cases,  399,  decided  by  the  Gen- 
eral Court,  June,  1824,  it  was  held :  If,  on  a  motion  in  a  county 
court,  on  the  common  law  side  thereof,  it  becomes  proper  to 
refer  to  a  commissioner  long-standing  and  perplexed  accounts, 
for  the  purpose  of  facilitating  the  investigation  of  the  cause  to 
the  parties  and  to  the  court,  and  such  reference  is  made  by 
order  of  the  court,  and  with  the  assent  of  the  parties,  the  fee  of 
the  commissioner  for  stating  and  reporting  the  accounts  ought 
to  be  taxed  in  the  bill  of  costs,  and  a  judgment  for  those  costs 
ought  to  be  rendered  against  the  party  who  had  to  pay  the 
general  costs.  If  such  taxation  is  made,  and  noted  by  the 
clerk  of  the  county  court  at  the  foot  of  the  record,  it  will  be 


896  Citations  to  the  Code  of  Virginia. 

presumed  by  the  appellate  court  that  the  order  for  such  taxa- 
tion was  made  by  the  court  itself  (it  not  being  a  matter  of 
course  with  the  clerk  to  include  such  fee  in  his  taxation  of 
costs),  though  it  does  not  appear  on  the  minutes  of  the  court. 


TITLE  L 
CHAPTER  CLXXIV. 

Section  3557. 

The  case  referred  to  as  2  Leigh,  84  and  101,  follows  the 
statute,  not  construes  it. 

In  the  case  of  Windrum  vs.  Parker  c&  Goodwyn,  2  Leigh, 
361,  decided  October,  1830,  it  was  held:  The  statute  giving 
common  law  executions  on  decrees  in  chancery  gives  the  courts 
of  chancery  the  superintendence  and  control  of  all  such  pro- 
cess, and  power  to  correct  irregularities  and  abuses  in  it. 

The  courts  of  chancery  may  quash  executions  irregularly  sued 
out  on  their  decrees,  and  forthcoming  bonds  taken  under  them,, 
on  motion  made  on  notice,  in  a  summary  way. 

For  the  references  to  75  Va.,  116  and  126-27,  and  76  Va., 
173  and  176,  see  ante,  Section  3397. 

In  the  case  of  Htdcheson  vs.  Grubhs,  80  Va.,  251,  decided 
February  10,  1885,  it  was  held :  A  decree  for  specific  property, 
or  requiring  payment  of  money,  has  the  effect  of  a  judgment, 
and  persons  entitled  thereto  are  judgment-creditors. 

In  the  case  of  Cheatham,  vs.  Cheatham' s  Executor,  81  Va.,  395, 
decided  January  2S,  1886,  it  was  held :  If  husband  and  wife 
agree  to  sell  and  convey  wife's  lands,  the  agreement  cannot  be 
specifically  enforced  in  a  court  of  equity :  not  against  wife,  be- 
cause she  is  incapable  of  binding  herself  by  an  executory  con- 
tract; not  against  husband,  because  coercion  against  him  would 
be  moral  coercion  against  her;  and  not  against  the  other  party, 
because  then  the  obligation  of  the  contract  would  not  be  mutual 
and  the  remedies  equal. 

Fiduciary  cannot  be  compelled,  by  summary  process  of  rule, 
to  show  cause  why  he  shall  not  be  fined  and  imprisoned  to  pay 
a  decree  against  him  as  such,  especially  where  his  accounts  have 
not  been  settled  in  the  suit,  and  it  has  not  been  shown  that  he 
has  assets  in  his  hands. 

Section  3561. 

In  the  case  of  Old  Dominion  Granite  Company  et  als.  vs. 
Clarke  et  als.,  28  Grat.,  617,  decided  March,  1877.  C.  obtained 
a  judgment  against  B.  &  P.,  as  partners,  trading  under  the  firm 
of  B.  &  Co.  He  delivered  an  abstract  of  his  judgment  to  the 
clerk  of  the  county  court  of  the  county  wherein  there  was  a 


Citations  to  the  Code  of  Virginia.  897 

tract  of  land  belonging  to  P.,  and  the  same  was  properly  entered 
bj  the  clerk  in  the  body  of  the  judgment  docket,  but  was  not 
indexed  in  the  name  of  P.,  but  merely  in  the  name  of  B.  &  Co. 
Subsequently  P.  sold  and  conveyed  his  land  to  O.,  who  had  no 
knowledge  of  C.'s  judgment.  Upon  a  bill  filed  by  C.  to  subject 
the  lands  in  the  hands  of  O.  to  the  lien  of  his  judgment.  Held : 
That  indexing  was  not  a  necessary  part  of  the  docketing,  and 
that  the  land  was  therefore  subject  to  the  lien  of  C.'s  judgment. 

Section  3566. 

In  the  case  of  Newman  vs.  Chapman,  2  Rand.,  93,  decided 
December  6,  1823,  it  was  held :  The  doctrine  of  lis  pendens  does 
not  rest  upon  the  presumption  of  notice,  but  upon  reasons  of 
public  policy;  and  in  cases  in  which  it  operates,  applies  where 
there  is  no  possibility  that  the  party  should  have  notice  of  the 
pendency  of  the  suit. 

In  the  case  of  French  vs.  The  Successors  of  the  Loyal  Company, 
5  Leigh,  627,  decided  July,  1834,  it  was  held:  A  lis  pendens  can 
only  affect  a  purchaser  of  the  subject  in  controversy  from  a 
party  to  the  suit. 

In  the  case  of  Smith  vs.  Brown's  Administrators,  9  Leigh, 
293,  decided  March,  1838,  it  was  held :  If,  pending  a  suit  in 
chancery  for  recovery  of  slaves  and  their  profits,  one  of  the 
slaves  is  sold  by  the  defendant,  and  the  plaintiffs  ask  and  obtain 
a  decree  against  the  defendant  for  the  value  of  the  slave  sold, 
they  thereby  waive  the  claim  against  the  T^urehsi&ex pendente  lite 
for  the  specific  property. 

In  the  case  of  Page  et  als.  vs.  Booth  et  als.,  1  Rob.,  169  (2d 
edition,  170).  Upon  a  bill  in  equity  to  charge  property  which 
has  passed  into  the  hands  of  third  persons  without  notice  of  the 
complainant's  claim,  the  court  being  called  upon  to  investigate 
transactions  which  occurred  thirty  years  before  the  institution 
of  the  suit,  and,  from  the  lapse  of  time  and  the  obscurity  of  the 
transactions,  it  being  impossible  to  arrive  at  the  truth  of  the 
case.     Held :  The  bill  ought  to  be  dismissed. 

A  person  entitled  to  have  an  assignment  of  a  title  bond  and 
the  possession  of  the  property  upon  paying  a  certain  sum,  trans- 
fers his  right,  and  his  assignee  pays  that  sum,  and  assigns  his 
right  to  another,  who  obtains  title  to  the  property  according  to 
the  bond;  after  which  the  person  first  mentioned  files  a  bill, 
alleging  that  his  transfer  was  in  consideration  of  money  which 
has  never  been  paid  him,  and  claiming  that  the  lien  of  a  vendor 
for  purchase-money  exists  in  his  favor,  upon  the  property  in 
the  hands  of  the  subsequent  holders,  who  purchased,  as  he 
alleges,  with  notice.     Held :  No  such  lien  exists. 

In  the  case  of  Philips  et  als.  vs.  Williams,  etc.,  5  Grat.,  259, 
decided  October,  1848,  it  was  held :  Land  on  which  the  annuity 

57 


898  Citations  to  the  Code  of  Vikginia. 

is  a  charge,  having  been  sold  during  the  pendency  of  the  suit, 
it  will  be  directed  to  be  sold  to  satisfy  the  arrears  of  the  annuity, 
without  noticing  the  pendente  lite  purchaser. 

In  the  case  of  Carrington  et  als.  vs.  Dieder,  Norvell  <&  Co.,  8 
Grat.,  260,  decided  October,  1851,  it  was  held :  Creditor  of  a 
deceased  debtor  may  proceed  by  foreign  attachment  against 
the  heirs  residing  abroad,  to  subject  land  or  its  proceeds  in  the 
State  descended  to  them  from  the  debtor. 

So  he  may  proceed  against  them  as  absent  defendants  in 
equity  to  marshal  the  assets,  and  thus  subject  the  land  descended 
to  them. 

Heirs  residing  out  of  the  State  having  instituted  a  suit  for 
a  sale  of  land  descended  to  them,  and  the  same  having  been 
sold  and  the  proceeds  being  in  the  hands  of  a  commissioner 
directed  by  the  court  to  collect  them ;  a  creditor  of  the  ancestor 
seeking  to  subject  these  proceeds  to  the  payment  of  his  debt 
should  apply  by  petition  to  the  court  to  be  made  a  party  in  the 
■cause,  and  to  have  the  fund  applied  by  proceedings  in  that 
<;ause  to  the  payment  of  his  debt;  or  if  he  proceeds  by  foreign 
attachment  the  commissioner  should  be  a  party,  and  be  re- 
strained by  the  endorsement  on  the  process  from  disposing  of 
the  proceeds;  or  if  the  creditor  proceeds  against  the  heirs 
to  marshal  the  assets,  there  should  be  an  injunction  to  restrain 
the  commissioner  from  paying  away  the  money  in  his  hands. 
And  the  commissioner,  though  a  party,  as  administrator  of  the 
debtor,  to  the  creditor's  suit,  but  having  in  fact  no  knowledge 
of  the  object  of  it,  paying  over  the  money  to  the  heirs  under 
the  order  of  the  court,  whose  commissioner  he  was,  will  not  be 
aflfected  by  the  lis  pendens  of  the  creditor's  suit  so  as  to  be  held 
liable  to  pay  it  over  again  to  the  collector. 

In  the  case  of  Cirode  vs.  Buchanan! s  Administrators,  22  Grat., 
205,  decided  June  12,  1872,  it  was  held,  p.  220 :  After  lis  pen- 
dens tiled,  all  rights  from  or  under  the  defendant  to  the  subject 
in  controversy,  pending  the  suit,  are  subject  to  any  decree 
which  may  be  made  in  the  suit,  except  so  far  as  a  purchaser 
without  actual  notice  is  protected  by  the  statute. 

In  the  case  of  Briscoe  vs.  Ashhy,  24  Grat.,  454,  decided 
March,  1874,  it  was  held :  Mrs.  A.  and  her  children  claiming 
under  the  decree  of  the  Circuit  Court  of  Fauquier,  the  case 
does  not  come  within  the  operation  of  the  registry  act.  Code  of 
1860,  Chapter  119,  Sections  4  and  5,  and  the  decree  is  not 
necessary  to  be  recorded  in  Culpeper  to  protect  them  against 
the  claim  of  T.  and  B.,  claiming  to  be  purchasers  for  value  with- 
out notice.  Nor  is  the  decree  of  the  Fauquier  court  such  a  de- 
cree as  is  require  1  to  be  recorded  by  the  first  and  eighth  sec- 
tions of  Chapter  186,  Code  of  1860.  Nor  does  the  fifth  section 
of  said  Chapter  186,  which  requires  a  lis  pendens  io  be  recorded, 
apply  to  the  decree  in  the  Fauquier  suit. 


Citations  to  the  Code  of  Virginia.  899 

In  the  case  of  Carrvmack.  vs.  Soran  et  al.,  30  Grat.,  292,  de- 
cided March,  1878,  it  was  held :  The  consideration  for  the  sale 
and  conveyance  of  land  is  a  debt  due  at  the  time  by  the  vendor 
to  the  purchaser;  the  purchaser  is  a  purchaser  for  valuable 
consideration  within  the  meaning  of  the  recording  acts;  and 
such  a  purchaser,  having  purchased  and  received  a  conveyance 
of  the  land,  without  notice  of  an  attachment  which  had  been 
previously  levied  upon  it,  but  which  had  not  been  docketed,  is 
entitled  to  hold  the  land  free  from  the  lien  of  attachment. 

In  the  case  of  Easley  et  als.  vs.  Barksdale  et  al.,  75  Va,,  274, 
decided  February  10,  1881,  it  was  held:  Lands  sold  and  con- 
veyed by  an  heir  and  devisee  after  such  report  filed  will  be  held 
liable  in  the  hands  of  a  purchaser  for  the  debts  of  the  deced- 
ent, while  lands  sold  and  conveyed  to  a  pendente  lite  purchaser 
without  actual  notice  of  the  lis  pendens  will  not  be  bound  by 
such  lis  pendens,  unless  the  provisions  of  the  statute.  Chapter 
182,  are  complied  with. 

In  the  case  of  Hum  vs.  Keller,  79  Va.,  415,  decided  Septem- 
ber 25,  1884,  it  was  held:  Independent  of  statute,  a  purchaser 
pendente  lite  from  a  party  to  a  suit  of  the  subject  thereof  takes 
it  bound  in  his  hands  by  any  decree  rendered  against  his  vendor 
in  that  suit  touching  said  subject.  By  statute  such  purchaser 
is  not  bound  by  such  decree  until  the  lis  pendens  is  recorded, 
as  thereby  directed,  provided  he  purchased  without  actual  no- 
tice of  the  pending  suit. 

In  the  case  of  Davis  et  al.  vs.  Bonney  et  al.,  89  Va.,  755, 
decided  March  16,  1893,  it  was  held :  A  creditor  at  large,  suc- 
cessfully suing  to  set  aside  a  deed  conveying  property  in  fraud 
of  creditors,  has  a  lien  on  the  property  from  the  time  of  suit 
brought,  and  a  creditor  who  comes  into  this  suit  shall  have  a 
like  lien  from  the  filing  of  his  petition,  but,  as  against  creditors, 
with  or  without  notice,  and  purchasers  for  value  without  notice, 
from  the  time  of  his  filing  his  memorandum  of  lis  pendens.  Such 
lien  is  a  lien  only  upon  the  property  conveyed,  and  not,  like  the 
lien  of  a  judgment,  on  all  of  the  debtor's  estate. 

Section  3567. 

In  the  case  of  Mutual  Assurance  Society  vs.  Stannard  et  aU.y 
4  Munf.,  539,  decided  January  21,  1815,  it  was  held :  The  lien 
of  a  judgment  upon  the  lands  of  the  party  relates  back  to  the 
commencement  of  the  term  at  which  it  was  obtained. 

If  a  judgment-creditor  (without  suing  out  execution)  file  a 
bill  in  chancery  to  get  satisfaction  out  of  the  real  and  personal 
property  of  the  debtor,  the  whole  being  conveyed  by  a  deed  of 
trust  executed  during  the  term  in  which  the  judgment  was  ob- 
tained, and  providing  that  the  property  conveyed  may  be  sold 
by  the  trustees  to  answer  the  purposes  of  the  trust,  the  court 


900  Citations  to  the  Code  of  Virginia. 

ought  to  dismiss  the  bill  as  to  the  personal  property,  without 
prejudice  to  the  plaintiff's  right,  if  any,  to  the  residuary  money 
resulting  to  the  debtor  from  the  sale  of  that  property,  after 
satisfying  the  deed;  but  should  direct  the  trustees  to  sell  the 
lands,  and  out  of  the  proceeds  thereof  to  satisfy  the  judgment 
in  the  first  place,  and  afterwards  to  perform  the  trusts  reposed 
in  them  by  the  deed. 

In  the  case  of  Coutts  vs.  Walker,  2  Leigh,  268,  decided  June, 
1830.  Real  estate  is  vested  in  a  trustee  by  deed  of  marriage 
settlement,  in  trust  to  pay  the  wife  an  annuity  out  of  the  profits, 
and,  subject  to  the  annuity,  in  trust  for  the  son  of  the  grantor; 
while  the  annuitant  is  yet  living  a  creditor  of  the  son  recovers 
a  judgment  against  him,  and  exhibits  his  bill  in  chancery,  to 
subject  the  son's  equity  in  the  estate  to  the  debt.     Held : 

1.  That  such  an  equitable  interest  cannot  be  taken  in  execu- 
tion at  law. 

2.  That  it  is  bound  by  the  judgment  in  equity,  which  will 
apply  it  to  the  satisfaction  of  the  debt ;  but, 

8.  As  the  annuitant  is  yet  living,  and  is  not  compellable  to 
take  a  gross  sum  in  satisfaction  of  the  annuity,  and  as  the  trus- 
tee is  to  hold  the  subject  and  pay  the  annuity  out  of  the  profits, 
the  court  of  chancery  ought  not  to  direct  the  sales  out  and  out 
of  the  debtor's  equitable  interest  subject  to  the  annuity,  but 
ought  to  only  direct  the  application  of  the  surplus  of  profits  as 
they  accrue,  after  paying  the  annuity,  to  the  debt. 

In  the  case  of  Skipwith's  Executor  vs.  Cunningham,  etc.,  8 
Leigh,  271,  decided  April,  1837,  it  was  held :  It  is  well  settled 
as  general  rule,  that  the  lien  of  a  judgment  upon  the  land  of 
the  debtor  relates  back  to  the  commencement  of  the  term  at 
which  the  judgment  was  obtained,  and  overreaches  a  deed  of 
tnist  on  the  land  executed  by  the  debtor  on  or  after  the  first 
day  of  the  term ;  but  the  term  is  not  considered  as  necessarily 
commencing  on  the  day  appointed  by  law  for  its  commence- 
ment. A  deed  admitted  to  record  on  the  day  appointed  for 
commencing  the  term,  but  before  the  day  on  which  the  court 
actually  commences  its  session,  will  be  unaffected  by  the  lien  of 
the  judgment. 

In  the  case  of  Taylor's  Administrator  vs.  Spindle,  2  Grat.,  44, 
decided  April,  1845,  it  was  held :  Where  a  fieri  facias  has  been 
issued  upon  a  judgment  within  the  year  and  a  day,  the  judg- 
ment is  a  lien  upon  a  moiety  of  all  the  lands  owned  by  the 
debtor  at  the  date  of  the  judgment,  or  which  were  afterwards 
acquired,  in  the  hands  of  bona  fide  purchasers  for  value,  with- 
out notice. 

So  long  as  a  judgment  may  be  revived,  it  is  a  lien  upon  a 
moiety  of  all  the  lands  owned  by  the  debtor  at  the  date  of  the 
judgment,  or  which  are  afterwards  acquired,  into  whosesoever 
hands  they  may  have  come. 


Citations  to  the  Code  of  Vieginia.  901 

It  is  the  settled  practice  in  Virginia  to  entertain  the  suit  of 
the  judgment- creditor  for  relief  in  equity,  Avhen  the  debtor  has, 
subsequent  to  the  judgment,  conveyed  his  lands  in  trust  for  the 
payment  of  debts,  or  on  other  trusts  authorizing  the  sale  of  the 
land.  And  in  such  case  the  court  will  decree  a  sale  to  satisfy 
the  judgment. 

It  is  not  necessary  that  a  judgment-creditor  should  have  issued 
an  elegit  on  his  judgment  before  coming  into  equity  for  relief. 

In  the  case  of  Leake  vs.  Ferguson,  2  Grat.,  419,  decided  Jan- 
uary, 1846,  it  was  held :  The  lien  of  a  judgment  is  a  legal  lien, 
and  a  piirchaser  of  the  legal  title  from  the  debtor  takes  it  sub- 
ject to  the  lien,  though  he  had  no  notice  of  it. 

On  a  joint  judgment  against  several,  the  service  of  a  ca.  sa. 
upon  one  does  not  extinguish  the  lien  of  the  judgment  upon  the 
land  of  the  others. 

On  a  joint  judgment  against  several,  the  service  of  a  ca.  sa. 
on  one,  and  the  execution  and  forfeiture  of  a  forthcoming  bond 
by  him,  does  not  extinguish  the  lien  of  the  judgment  upon  the 
land  of  the  others. 

In  such  a  case,  the  party  upon  whom  a  ca.  sa.  was  served,  and 
who  executed  the  forthcoming  bond,  having  been  a  surety  of  the 
principal  debtor  in  the  judgment,  his  surety  in  the  forthcoming 
bond  having  paid  the  debt,  is  entitled  to  be  substituted  to  the 
creditor's  remedfes  against  the  land  of  the  principal  debtor ; 
and  this  though  the  land  was  sold  by  the  principal  debtor,  and 
had  come  into  the  hands  of  a  hona  fide  purchaser  for  value 
without  notice  before  the  service  of  the  ca.  sa. 

Prior  to  the  act  of  1822,  a  judgment  in  favor  of  the  Common- 
wealth against  general  debtors  only  bound  one-half  the  land  of 
the  debtor. 

A  party  coming  into  equity  to  enforce  the  lien  of  a  judgment 
is  not  entitled  to  an  account  for  rents  accrued  before  the  decree. 

In  the  case  of  Rodgers  vs.  McClure's  Administrator  et  als.,  4 
Grat.,  81,  decided  July,  1847,  it  was  held:  A  judgment  is  a  lien 
upon  the  lands  owned  by  the  debtor  at  the  date  of  the  judg- 
ment in  the  hands  of  hona  fide  alienees  for  value. 

The  land  last  sold  by  the  debtor  is  to  be  first  applied  to  the 
satisfaction  of  the  judgment,  and  this  though  the  last  purchaser 
obtained  a  conveyance  before  the  first;  the  first  having  pre- 
viously had  a  good  equitable  title. 

In  the  case  of  Withers  vs.  Carter,  4  Grat.,  407,  decided  Jan- 
uary, 1848,  it  was  held :  A  creditor  by  judgment  or  decree  may 
in  equity  subject  the  debtor's  equitable  interest  in  land  sold  by 
him  for  the  purchase-money  unpaid ;  and  such  creditor  will  be 
preferred  to  an  assignee  of  the  purchase-money  claiming  under 
an  assignment  made  subsequent  to  the  judgment  or  decree. 

The  fiction  of  law  which  gives  the  judgment  relation  to  the 


902  Citations  to  the  Code  of  Virginia. 

first  day  of  the  term,  applies  to  all  cases  in  which  the  judgment 
might  have  been  rendered  on  that  day ;  but  not  to  a  case  in 
which  it  could  not  have  been  then  rendered. 

There  is  a  creditor  by  judgment  prior  to  a  sale  of  land  by  his 
debtor,  and  there  is  purchase-money  unpaid  sufficient  to  satisfy 
the  judgment,  when  another  creditor  recovers  judgment  against 
the  same  debtor.  This  last  cannot  insist  that  the  first  shall  go 
against  the  land,  and  leave  the  purchase-money  unpaid  for  him, 
but  the  purchaser  of  the  land  is  entitled  to  have  the  purchase- 
money  applied  to  relieve  his  land. 

In  the  case  of  Burbridge  vs.  Higgins  {Administrator),  6  Grat., 
119,  decided  July,  1849.  In  a  suit  in  the  nature  of  a  foreign 
attachment  the  subpcena  is  served  upon  the  absent  defendant, 
and  there  is  a  personal  decree  against  him  in  favor  of  the  plain- 
tiff for  the  amount  of  the  debt.  In  another  suit  brought  by  the 
plaintiff  to  obtain  satisfaction  of  this  decree,  the  validity  of  the 
decree  in  the  first  suit  canot  be  questioned. 

.  A  person  largely  indebted  purchases  land  and  pays  part  of 
the  purchase-money,  and  has  the  land  conveyed  to  his  son ;  and 
the  son  conveys  it  in  trust  to  secure  the  balance  of  the  purchase- 
money.  The  son  then  sells  the  land  to  a  third  person  at  an  ad- 
vance price  given  by  the  father.  A  decree-creditor  of  the  father 
files  a  bill  to  set  aside  the  conveyance  as  frau(^ulent  as  to  credi- 
tors, and  pending  this  suit  the  balance  of  the  original  purchase- 
money  is  paid  by  the  last  purchaser  out  of  the  money  due  him 
from  his  son.  The  plaintiff  being  willing  that  the  last  sale  shall 
stand,  and  to  look  to  the  purchase-money  for  satisfaction. 
Held :  That  the  deed  of  trust  given  to  secure  the  balance  of 
purchase-money  on  the  first  sale  being  still  outstanding,  though 
satisfied  since  the  commencement  of  this  suit,  the  plaintiff  is 
entitled  to  have  the  whole  of  the  purchase-money,  after  satisfy- 
ing said  trust,  and  not  a  moiety  only,  applied  to  the  discharge 
of  the  debt.  A  decree  is  a  lien  on  the  debtor's  land,  and  the 
creditor  may  come  into  equity  to  subject  the  land  though  the 
decree  has  not  been  revived  against  the  administrator  of  the 
debtor,  and  no  execution  has  ever  been  issued  upon  it. 

In  the  case  of  clones,  etc.  vs.  Myrickis  Executors,  8  Grat.,  179^ 
decided  October,  1851.  Lands  subject  to  a  judgment  lien  which 
have  been  sold  or  encumbered  by  the  debtor  are  to  be  subjected 
to  the  satisfaction  of  the  judgment  in  the  inverse  order  in  point 
of  time  of  the  alienations  and  encumbrances.  The  land  last  sold 
or  encumbered  being  first  subjected. 

A  judgment-creditor  having  by  his  conduct  waived  or  lost  his 
right  to  subject  the  land  first  liable  to  satisfy  his  judgment,  is 
not  entitled  to  subject  the  lands  next  liable  to  the  whole  amount 
of  his  judgment,  but  only  for  the  balance  after  crediting  thereon 
the  value  of  the  land  first  liable. 


Citations  to  the  Code  of  Virginia.  903 

A  judgment-creditor  having  the  prior  lien  on  the  lands  of  his 
debtor  files  a  bill  against  the  debtor  and  other  creditors  having 
encumbrances  on  his  debtor's  lands.  Pending  this  suit  another 
creditor  of  the  same  debtor  files  a  bill  against  him  and  his 
creditors,  and  among  them  the  judgment-creditor,  seeking  to 
subject  the  lands  under  his  lien,  and  in  this  suit  the  proceeds  of 
the  whole  lands  which  were  sold  by  the  sheriff  under  the  in- 
solvent laws,  or  by  the  trustees  in  the  deeds,  are  distributed  by 
the  decree  of  the  court  to  other  creditors.  The  judgment-credi- 
tor afterwards  matures  his  suit  and  brings  it  on  for  hearing. 
Held:  That  the  decree  in  the  other  cause  concludes  him,  so 
that  he  is  not  entitled  to  recover  from  the  creditors  who  received 
them  the  proceeds  of  the  land  sold  by  the  sheriff,  nor  is  he  en- 
titled to  have  the  land  sold,  as  against  the  purchaser  thereof. 

Ill  the  case  of  Craig  vs.  Sehrell,  9  Grat.,  131,  decided  August 
2,  1852,  it  was  held:  A  judgment  is  a  lien  upon  the  lands  in  the 
hands  of  a  purchaser,  though  at  the  time  of  the  convey8,nce 
execution  upon  the  judgment  was  suspended  by  an  injunction, 
and  the  lien  exists  though  the  judgment  was  not  docketed,  the 
purchaser  having  had  notice  thereof. 

In  the  case  of  Michmix's  Administrator  vs.  Brown  et  als.,  10 
Grat,,  612,  decided  January,  1854,  it  was  held :  A  judgment  is 
a  lien  upon  an  equity  of  redemption  in  land,  and  will  be  re- 
ferred to  a  subsequent  purchaser  of  the  equity  of  redemption 
not  having  the  legal  title.  And  the  lien  of  the  judgment  extends 
to  the  whole  equity  of  redemption. 

Though  the  judgment  was  enjoined  at  the  time  of  the  pur- 
chase, yet  upon  the  dissolution  of  the  injunction  the  lien  relates 
back  to  the  date  of  the  judgment,  and  so  has  priority  over  the 
equity  of  the  purchaser.  The  damages  on  the  dissolution  of  an 
injunction  to  a  judgment  becomes,  as  to  the  party  obtaining  it, 
a  part  of  the  judgment,  and  are  embraced  in  the  lien  of  the 
judgment  upon  the  equity  of  redemption. 

A  judgment  being  rendered  for  the  penalty  of  a  bond  to  be 
discharged  by  the  payment  of  the  principal  sum  due  and  in- 
terest, and  the  payment  of  the  money  having  been  delayed  by 
an  injunction  until  the  principal  due  and  the  interest  exceed  the 
penalty,  the  lien  of  the  judgment  only  extends  to  the  penalty, 
the  damages  upon  the  dissolution  of  the  injunction,  and  the  costs 
at  law,  without  continuing  interest. 

The  reference  to  16  Grat.,  265,  is  an  error. 

In  the  case  of  Gatewood's  Administrator  vs.  Goode  et  als.,  23 
Grat.,  880,  decided  September,  1875.  At  the  March  term,  1861, 
of  the  County  Court  of  Monroe,  a  judgment  was  rendered  at  the 
suit  of  the  i3ank  of  V.,  plaintiff,  against  W.  S.  and  G.,  the 
latter  living  in  the  county  of  Bath.  Execution  of/,  fu.  was  issued 
on  this  judgment,  and  was  levied  on  the  property  of  W.  8. ;  and 


904  Citations  to  the  Code  of  Virginia. 

the  sheriff  returned,  after  June,  1861,  a  levy  upon  the  personal 
property  of  W.,  that  the  property  was  appraised  and  offered  for 
sale,  and,  not  bringing  its  valuation,  it  was  returned.  G.  died 
during  the  war,  leaving  real  estate  in  Bath  county,  and  also  in 
West  Virginia ;  and  after  his  death  some  of  his  creditors  filed 
their  bill  in  the  Circuit  Court  of  Bath  to  subject  his  real  estate 
to  the  payment  of  his  debts.  The  commissioner  reported  the 
above  judgment  as  a  debt  by  judgment  having  priority.  A  copy 
of  the  judgment  was  certified  by  the  "clerk  of  Monroe  Circuit 
Court,  and,  as  such,  keeper  of  the  records  of  Monroe  County 
Court,  and  which  by  law  are  a  part  of  the  records  of  my  ofiice." 
The  Circuit  Court  of  Bath  confirmed  the  report.  Held:  The 
judgment,  as  constituted  between  the  parties  thereto,  was  a  lien 
on  the  real  estate  in  Virginia  belonging  to  the  judgment-debt- 
ors, or  any  of  them,  whether  the  said  judgment  was  docketed 
in  the  counties  in  which  the  real  estate  might  be  or  not.  That 
the  Jien  was  not  discharged  by  the  levy  of  the  execution  upon 
the  property  of  W.,  one  of  the  debtors,  by  the  sheriff  of  Mon- 
roe county ;  nor  was  the  execution  satisfied  by  the  act  of  the 
sheriff  returning  the  property  so  levied  on  to  W.,  in  obedience 
to  the  ordinance  of  the  Virginia  Convention  of  1861,  whether 
such  ordinance  was  valid  or  not,  said  act  of  the  sheriff  being 
entirely  his  own  act,  neither  prompted  nor  assisted  by  the 
plaintiff  in  the  judgment.  That  the  lien  of  said  judgments  on 
the  lands  of  G.  in  Bath  county  was  neither  lost  nor  impaired 
by  reason  of  the  division  of  the  State  of  Virginia  into  two 
States,  and  the  falling  of  the  county  of  Monroe  into  the  State 
of  West  Virginia.  That  the  certificate  of  the  clerk  of  the  Cir- 
cuit Court  of  Monroe  county  in  West  Virginia,  of  the  records 
of  which  court  the  records  of  the  former  County  Court  of  Mon- 
roe form  a  part,  was  proper  evidence  of  such  judgment;  and, 
there  appearing  no  other  judgment  binding  said  lands,  nor  any 
debt  of  G.  of  superior  dignity,  there  was  no  error  in  the  decree. 
In  the  case  of  Floyd  {Trustee)  vs.  Harding  et  als.,  28  Grat., 
401,  decided  March,  1877.  In  1856  L.  sells  land  to  T.  by  parol 
contract,  receives  all  the  purchase-money,  and  puts  T.  into  pos- 
session. In  January,  1857,  L.  executes  a  deed  to  T.,  by  which 
he  releases  all  the  land  to  T.  and  warrants  the  title.  T.  then 
sells  the  land  to  W.,  and  W.  conveys  it  to  F.  In  March,  1866, 
B.  recovers  a  judgment  against  L.,  which  is  docketed  within 
the  year.  In  a  suit  against  F.  to  subject  the  land  to  satisfy  the 
judgment  against  L.,  held :  That  the  registry  acts  do  not  apply 
to  a  parol  contract  for  land ;  and  T.  having  paid  all  the  pur- 
chase-money, and  having  been  put  into  possession,  so  that  he 
had  a  valuable  equitable  title  to  the  land,  it  is  not  subject  to 
the  lien  of  the  judgments  against  L.  The  valid  equitable  title 
of  T.  is  not  so  merged  in  the  legal  title  acquired  by  the  deed  of 


Citations  to  the  Code  of  Virginia.  905 

L.  to  him  as  to  subject  the  land  to  the  lien  of  the  judgment 
against  L. 

In  the  case  of  Lavell  and  Jordan  vs.  McCurdy's  Executors,  11 
Va.,  763,  decided  October  4,  1883,  it  was  held:  The  utmost  ex- 
tent of  the  jurisdiction  in  the  court  upon  a  writ  of  scire  facias 
reciting  a  judgment  for  money,  and  notifying  the  defendants  to 
appear  and  show  why  the  plaintiffs  should  not  have  an  execu- 
tion against  them  for  the  debt,  interest,  and  cost  of  said  judg- 
ment, is  to  render  judgment  that  the  plaintiffs  in  the  writ  of 
scire  facias  have  execution  of  the  judgment  in  the  writ  set  forth. 
Such  judgment  for  the  award  of  execution  does  not  constitute 
a  lien  on  real  estate. 

In  the  case  of  Sinclair  vs.  Sinclair,  79  Va.,  40,  decided  April 
3,  1884,  it  was  held:  A  judgment-creditor  can  acquire  no  better 
right  to  his  debtor's  estate  than  the  latter  himself  has,  and  ap- 
plies it  to  satisfy  his  lien,  subject  to  all  equities  existing  at  the 
time  in  favor  of  third  persons. 

When  one,  with  another's  money,  buys  an  estate,  and  takes 
the  conveyance  in  his  own  name,  by  presumption  of  law  a  trust 
results  in  favor  of  him  whose  money  is  thus  used.  Such  trust 
may  be  established  by  parol  proof,  but  the  proof  must  be  clear. 
If  part  only  of  the  purchase-money  has  been  paid  of  another's 
funds,  the  land  will  be  charged  proportionately,  and  judgment- 
creditors  of  the  grantee  can  subject  only  his  portion  or  interest 
therein. 

In  the  case  of  Yates  <&  Ay  res  vs.  Robertson  <&  Berkley,  80  Va., 
475,  decided  May  7, 1885,  it  was  held :  As  a  general  rule  a  judg- 
ment rendered  at  any  time  during  a  term  relates  back  to  the 
first  day  of  the  term,  as  if  rendered  then.  This,  however,  is  not 
always  so.  This  rule  does  not  apply  to  a  judgment  rendered 
during  a  term  in  a  case  which  was  in  such  a  condition  that  the 
judgment  could  not  have  been  rendered  on  the  first  day  of  the  term. 

Section  3569. 

In  the  case  of  McCance  vs.  Taylor,  10  Grat.,  580,  decided 
January,  1854,  it  was  held :  The  act  of  March  3,  1843,  Session 
Acts  1842-'43,  p.  51,  does  not  apply  to  purchasers  before  the 
passage  of  the  act.  As  to  such  the  lien  of  a  prior  judgment  is 
valid  though  not  recorded. 

Section  3570. 

For  the  reference  to  28  Grat.,  401,  see  ante,  Section  3567. 

In  the  case  of  Borst  vs.  Nalle  et  als.,  28  Grat.,  423,  decided 
March,  1877.  The  docketing  of  a  judgment  is  an  act  to  be  done 
to  preserve  or  prevent  the  loss  of  a  civil  right  or  remedy  within 
the  meaning  of  the  acts  of  March  4, 1862,  Acts  of  1861-'62,  Chapter 
81,  and  of  March  2,  1866,  Code  of  1873,  Chapter  146,  Sections 
6  and  7,  pp.  998-'99.     And,  therefore,  in  computing  the  time 


906  Citations  to  the  Code  op  Virginia. 

within  which  a  judgment  is  required  by  Section  8,  Chapter  186, 
Code  of  1860,  to  be  docketed,  in  order  to  preserve  the  lien  of 
such  judgment  against  purchasers,  the  period  between  the  17th 
of  April,  1861,  and  the  2d  of  March,  1866,  is  not  to  be  computed 
as  a  part  of  such  time. 

For  the  reference  to  28  Grat.,  617,  see  ante^  Section  3561. 

In  the  case  of  Edison  y^.  Huff  et  als.,  29  Grat.,  338,  decided 
November,  1877.  At  the  February  term,  1857,  of  the  court  a 
judgment  was  recovered  against  S.,  and  H.  as  his  surety  on  a 
forthcoming  bond,  and  it  was  docketed  on  the  1st  of  April,  1857. 
An  execution  was  issued  on  this  judgment,  and  it  was  paid  by 
H.  On  the  8th  of  October,  1856,  S.  by  written  agreement  under 
seal  sold  to  E.  a  house  and  lot,  and  delivered  possession,  and 
on  the  18th  of  the  same  month  S.  conveyed  the  same  to  E. 
This  deed  was  acknowledged  on  the  same  day,  H.  being  one  of 
the  justices  who  took  the  acknowledgment,  but  it  was  not  pre- 
sented in  the  clerk's  office  for  record  until  March  9, 1857,  Upon 
a  bill  by  H.  against  E.  and  S.  to  be  substituted  by  the  lien  of 
the  judgment  against  S.,  held :  H.  is  entitled  to  be  substituted 
to  the  lien  of  the  judgment. 

The  judgment  having  been  docketed  within  twelve  months 
from  the  date  of  its  being  rendered,  and  the  deed  not  having 
been  docketed  within  sixty  days  from  its  acknowledgment,  the 
judgment  is  a  lien  upon  the  house  and  lot  against  the  deed. 

The  agreement  not  having  been  docketed,  it  is  void  as  to  the, 
creditor  and  as  to  H.  claiming  under  him,  though  H.  had  notice 
of  the  deed,  and  E.  had  possession  of  the  house  and  lot. 

Notice  of  deed  or  written  agreement  for  sale  of  land  does  not 
affect  a  creditor  of  the  grantor. 

In  the  case  of  March,  Price  <&  Co.  vs.  Chambers  et  als.,  30 
Grat.,  299,  decided  March,  1878.  In  January,  1866,  C.  by  an 
agreement  in  writing  sold  to  W.  a  lot  in  Danville,  and  in  the 
same  month  conveyed  it  to  him.  The  agreement  was  never 
recorded,  and  the  deed  was  not  recorded  until  September  18, 
1873.  W.  having  paid  all  the  purchase-money  to  C.,  conveyed 
the  lot  to  R.  to  secure  him  a  debt  of  four  thousand  dollars. 
This  deed  was  recorded  on  the  24th  of  August,  1866.  In  April, 
1868,  W.  was  declared  a  bankrupt,  giving  in  the  lot  as  a  part  of 
his  estate.  In  May,  1868,  on  the  joint  application  of  the  as- 
signee and  R,  as  a  lien  creditor  of  the  bankrupt,  the  court  in 
bankruptcy  ordered  a  sale  of  the  lot,  and  the  sale  was  made  to 
B,.,  and  on  the  18th  of  November  confirmed,  and  the  assignee 
directed  to  convey  the  lot  to  B.  which  was  done  on  the  same 
day,  and  R.  took  possession.  In  July,  1872,  M.  recovered  a 
judgment  against  C.  in  the  Corporation  Court  of  Danville,  which 
was  docketed  on  the  11th  of  March,  1873.  Held :  Though  M. 
had  notice  of  the  sale  by  C,  to  W,,  the  lot  is  liable  to  satisfy  this 


Citations  to  the  Code  of  Virgima.  907 

judgment  notwithstanding  all  the  subsequent  conveyances  and 
proceedings  in  relation  to  said  lot. 

In  the  case  of  Redd  vs.  Barney,  31  Grat.,  265,  decided  Jan- 
uary 9,  1879,  it  was  held :  R.  obtains  a  decree  against  his  guar- 
dian and  his  sureties  for  a  certain  sum  of  money,  and  sues  out 
an  execution,  which  is  levied,  and  a  forthcoming  bond  taken 
and  forfeited.  The  court  on  its  chancery  side,  on  notice  to  the 
obligors  in  the  forthcoming  bond,  renders  a  judgment  in  favor 
of  R.  against  them,  and  this  judgment  is  docketed.  Held:  The 
judgment  is  a  valid  judgment,  and  having  been  docketed,  it  is 
notice  which  will  affect  all  subsequent  purchasers  of  land  from 
any  of  the  defendants  in  the  judgment. 

In  the  case  of  Yoimg  et  als.  vs.  Devnes  et  als.,  31  Grat.,  304, 
decided  January  23,  1879,  it  was  held:  Land  sold  and  pur- 
chased under  a  written  contract  which  has  not  been  recorded, 
though  the  purchasers  have  paid  all  the  purchase -money  and 
have  been  for  years  in  possession  under  the  contract  before  a 
judgment  has  been  recovered  against  their  vendor,  is  liable  to 
satisfy  the  judgment. 

Land  sold  and  purchased  under  a  parol  contract,  the  pur- 
chasers having  paid  the  purchase -money,  and  having  been  put 
in  possession,  and  holding  the  possession  under  the  contract 
before  a  judgment  has  been  recovered  against  their  vendor,  is 
not  liable  to  satisfy  the  judgment. 

For  the  reference  to  75  Va.,  757,  see  ante,  Section  3469. 

For  the  reference  to  76  Va.,  173,  see  ante.  Section  3397. 

In  the  case  of  Gordon  {Assignee)  vs.  Kixey  {Assignee)  et  als., 
76  Va.,  694. 

Liens. — Judgment. — Vendors. — Priorities. — Case  at  Bar. — In 
1867,  on  bond  of  M.  and  B.  to  P.,  assigned  by  P.  to  R.,  the  lat- 
ter obtained  judgment,  which  was  docketed  in  1869.  In  1866 
M.  granted  his  land  to  B.,  reserving  lien  for  purchase-money, 
and  in  1870  assigned  the  purchase-money  bonds  to  G.  for  value 
without  notice  of  the  judgment.  In  contest  for  priority  between 
R.,  as  judgment-creditor,  and  G.,  as  assignee  of  the  vendor's  lien 
and  of  the  bonds  thereby  secured.  Held :  The  lien  of  the  judg- 
ment hath  priority. 

In  the  case  of  Gumee  vs.  Johnson's  Executor  et  als.,  77  Va., 
712,  decided  September  27, 1883,  it  was  held:  Code  1873,  Chap- 
ter 182,  Section  6,  makes  every  judgment  rendered  in  this  State 
a  lieu  on  all  the  debtor's  real  estate,  and  the  prior  judgment 
hath  priority  as  between  the  judgments,  whether  docketed  or 
undocketed.  But  no  judgment  is  a  lien  on  real  estate  as  against 
purchasers  thereof  for  a  valuable  consideration  without  notice, 
unless  it  be  docketed  in  the  mode  and  within  the  time  pre- 
scribed. If  docketed,  the  judgment,  if  prior  in  time,  hath 
priority  over  such  purchaser.     To  docket  his  judgment  is  the 


908  Citations  to  the  Code  of  Yirginia. 

creditor's  privilege,  not  his  duty.  If  he  fails  to  docket  it  he 
may  lose  his  lien  on  the  real  estate  aliened  to  a  purchaser 
without  notice. 

In  the  case  of  McCormick  {Trustee)  vs.  Atkinson  {Trustee),  78 
Va.,  8,  decided  November  15,  1883,  it  was  held:  Where  con- 
veyance is  made  of  the  stock  and  fixtures  of  a  store,  in  trust  to 
secure  debt  payable  in  futuro,  without  right  to  trustee  to  pos- 
sess or  control  the  property,  except  in  event  of  default  of  pay- 
ment, then,  on  request  of  cestui  que  trust  to  sell  the  same,  such 
conveyance  impliedly  reserves  to  grantor  the  power  to  possess 
and  sell  the  property ;  and  if  he  sells,  then,  as  to  the  purchaser, 
and  creditors  of  that  purchaser,  that  conveyance  is  void,  although 
it  may  have  been  recorded,  its  recordation  being  only  notice  of 
a  void  thing. 

As  between  an  unrecorded  deed  of  trust  and  a  subsequent 
but  recorded  conveyance  of  the  equity  of  redemption  without 
notice  of  the  former  deed,  the  latter  hath  priority. 

Section  3571. 

In  the  case  of  Cronie  vs.  Hart  et  als.,  18  Grat.,  739,  it  was 
held :  It  must  appear  that  the  rents  and  profits  will  not  dis- 
charge the  judgment,  even  against  fraudulent  alienees. 

In  the  case  of  Horton  vs.  Bond„  28  Grat.,  815,  decided  Au- 
gust 9,  1877,  it  was  held,  p.  820 :  The  decree  of  sale,  though  a 
sale  was  ascertained  to  be  necessary,  was  premature  if  entered 
before  the  priority  of  the  liens  was  determined,  affirming  Coles's 
Administrator  vs.  McRae,  6  Rand.,  644 ;  Smith  et  als.  vs.  T'liyit 
et.  als.,  6  Grat.,  40;  Buchanan  vs.  Clark  et  als.,  10  Grat.,  164; 
Large  vs.  Boisseux,  15  Grat.,  83  ;  Lipscomb  vs.  liogers  et  als.,  20 
Grat.,  658;  l\7iite  vs.  Mechanics  Building  Fund  Association,  22 
Grat.,  233;  Jforan  vs.  Brent  et  als.,  25  Grat.,  104. 

In  the  case  of  I^rice  vs.  Thrash,  30  Grat.,  515  and  524-'28, 
decided  July,  1878.  There  being  no  averment  in  the  bill  or  ad- 
mission or  proof  that  the  rents  and  profits  of  the  land  retained 
by  P.  will  not  pay  the  debt  in  five  years,  it  was  error  to  decree 
a  sale  of  the  land  before  having  this  inquiry  made.  But  the 
decree  appealed  from  being  interlocutory,  this  court  will  amend 
the  decree  in  this  respect,  and  as  amended  affirm  it,  with  costs 
to  the  appellee. 

In  the  case  of  Compton  vs.  Tabor,  32  Grat.,  121,  decided 
July,  1879,  it  was  held :  Upon  a  bill  filed  hy  a  jiidgment-creditor 
to  subject  the  land  of  his  debtor  to  satisfy  his  debt,  the  court, 
in  order  to  ascertain  whether  the  rents  of  the  land  will  pay  the 
debt  in  five  years,  should  generally  direct  the  commissioner  to 
offer  it  first  for  one  year,  and,  if  that  will  not  pay  the  debt,  then 
for  two,  and  so  on,  if  necessary,  for  five  y^ars,  closing  the  con- 
tract whenever  the  rent  vdll  pay  the  debt,  the  terms  of  payment 


Citations  to  the  Code  of  Virginia.  909 

of  the  rent  to  be  fixed  by  the  court,  looking  to  the  kind  of  pro- 
perty and  the  usage  of  the  country.  If  it  will  not  rent  for 
enough  in  five  years,  the  commissioner  should  report  the  fact 
to  the  court. 

The  reference  to  33  Grat.,  576-77,  is  an  error.  This  case  is, 
however,  cited  to  Section  2442. 

For  the  reference  to  75  Va.,  825  and  833-34,  see  ante,  Sec- 
tion 2475. 

In  the  case  of  Muse  vs.  FriedenwaM ,  11  Va.,  57,  decided 
January  25,  1883,  it  was  held :  Before  sale  of  realty  can  be  de- 
creed to  pay  judgment  liens,  the  court  must,  in  some  way,  be 
convinced  that  the  rents  and  profits  will  not  in  five  years  satisfy 
those  liens.  When  the  insufficiency  is  alleged  and  not  denied, 
there  need  be  no  inquiry ;  but  where  not  alleged,  or,  if  alleged, 
the  allegation  is  denied,  there  must  be  inquiry  before  a  sale  is 
decreed. 

In  the  case  of  Brengle  et  ah.  vs.  JRichardsori  s  Administrators 
et  als.,  78  Va.,  406,  decided  January  31,  1884,  it  was  held: 
Judgment- creditor  brings  suit  to  enforce  his  lien.  After  ac- 
count ordered  and  taken,  and  other  liens  proved,  the  other 
lienors  become  parties  to  the  suit,  and  are  entitled  to  have  the 
lands  sold  for  their  relief  in  the  order  of  their  respective  priori- 
ties, and  aliened  lands  of  the  debtor  must  be  sold  in  the  inverse 
order  of  the  alienation. 

The  acts  of  courts  of  competent  jurisdiction,  having  cogni- 
zance of  the  parties  and  of  the  subject-matter,  cannot  be  ques- 
tioned elsewhere.  If  a  bankrupt  court  wrongfully  allows  the 
bankrupt  the  exemption  claimed  by  him,  the  remedy  is  not  in 
the  State  courts. 

Where  the  bill  does  not  allege  the  insufficiency  of  the  rents 
and  profits  to  satisfy  the  liens  within  the  period  of  five  years, 
and  where  there  has  been  no  inquiry,  but  the  decree  of  the 
court  below  sets  forth  that  it  appears  that  the  lands  without 
the  improvements,  when  sold,  would  not  more  than  pay  the 
liens,  the  party  entitled  to  the  inquiry  may  be  presumed  to 
have  waived  it,  and  the  decree  of  sale  will  not  be  set  aside  on 
account  of  the  omi.ssion  of  such  inquiry ;  but  it  will  be  amend- 
ed, and  that  party  be  allowed  to  have  the  inquiry  if  he  chooses; 
and,  so  amended,  the  decree  will  be  affirmed. 

In  the  case  of  Daingerjield  vs.  Smith,  83  Va.,  81,  decided 
March  31,  1887,  it  was  held:  It  is  improper  to  decree  sale  and 
renting  of  lands  before  taking  an  account  of  liens  and  priorities. 
It  is  also  improper  to  decree  renting  and  sale  simultaneously,  if 
the  rents  prove  insufficient.  The  renting  should  be  first  de- 
creed, and,  if  report  shows  it  to  be  insufficient,  sale  may  be  de- 
creed. 

This  is  the  case  cited  from  11  Virginia  Law  Journal,  588. 


910  Citations  to  the  Code  of  Virginia. 

In  the  case  of  Neffy^.  Woodmg  and  Tf7/e,  83  Va.,  432,  decid- 
ed June,  1887,  it  was  held :  In  suit  to  enforce  liens  reserved  in 
favor  of  grantor  in  his  conveyance  of  land,  as  provided  by  Sec- 
tion 2473,  the  court  may  decree  sale  of  the  land  to  satisfy  the 
lien,  without  any  previous  account  of  rents  and  profits;  Section 
3571  applies  only  to  suits  for  the  enforcement  of  judgment 
liens. 

This  is  the  case  cited  from  11  Virginia  Law  Journal,  634. 

In  the  case  of  Eggleston  vs.  AYhittle,  84  Va.,  163,  decided  De- 
cember 1,  1887.  A  commissioner  sold  land  and  received  the 
money  without  giving  bond  or  accounting.  Purchaser  was  re- 
quired to  pay  it  again;  receiver  got  judgment  against  him  and 
surety;  execution  was  returned  no  effects.  Before  the  return, 
commissioner  executed  trust  deed  to  secure  the  purchaser.  Re- 
ceiver filed  in  pending  creditor's  suit  against  commissioner  his 
petition  to  enforce  his  execution  lien  against  fund  secured  to 
purchaser.  Latter  resisted  on  the  ground,  first,  that  he  claimed 
the  fund  as  his  homestead,  and  second,  that  he  had  assigned  it. 
Receiver  then  brought  suit  to  enforce  his  judgment  lien  against 
the  lands  of  the  purchaser  and  surety.  Held:  Receiver  was 
entitled  to  maintain  his  suit  to  enforce  said  judgment  lien  against 
lands  of  surety  and  purchaser. 

In  the  case  of  Moore  vs.  Bruce,  85  Va.,  139,  decided  July  19, 
1888,  it  was  held:  The  lien  of  a  judgment  may  always  be  en- 
forced in  equity  without  2^fi.  fa.  thereon. 

In  the  case  of  Ihomas  vs.  Sellman,  87  Va.,  683,  decided  April 
23,  1891,  it  was  held :  It  is  not  multifarious  for  a  bill  to  seek  to 
subject  judgment-debtor's  alleged  interest  in  lands,  chattels,  etc., 
to  the  payment  of  plaintiff's  debt. 

In  the  case  of  Kyger  vs.  Sijpe  [Trustee],  89  Va.,  507,  decided 
December  15,  1892,  it  was  held:  In  suit  to  enforce  trust  deed, 
the  value  of  the  rents  and  profits  of  the  lands  is  immaterial,  as 
the  deed  is  not  a  judgment  within  the  meaning  of  the  Code, 
Section  3571. 

Section  3573. 

In  the  case  of  Hutcheson  vs.  Chnibbs,  80  Va.,  251,  decided 
February  19,  1885,  it  was  held :  Courts  of  equity  follow  the  law 
as  respects  the  statutes  of  limitations.  If  a  legal  claim  barred 
at  law  be  assei'ted  in  equity,  it  is  equally  barred  there. 

Lien  of  judgment  is  a  creature  of  statute,  and  cannot  be  en- 
forced in  equity  after  it  ceases  to  be  enforcible  at  law. 

The  language  of  the  statute,  Code  1873,  Ciiapter  182,  Section 
9,  "  The  lien  of  a  judgment  may  always  be  enforced  in  a  court 
of  equity,"  implies  only  a  purpose  to  confer  jurisdiction  on 
courts  of  equity  to  enforce  the  lien,  whether  the  remedies  at  law 
are  adequate  or  not. 

In  the  case  of  Sutton  et  als.  vs.  McKenny  {Trustee),  82  Va., 


Citations  to  the  Code  of  Virginia.  911 

46,  decided  April  22,  1886,  it  was  held  :  The  lien  of  a  judgment 
is  not  enforcible  in  equity  after  it  ceases  to  be  enforcible  at  law. 

Section  3574. 
For  the  reference  to  76  Va.,  895-'96,  see  ante,  Section  3475. 

Section  3575. 

In  the  case  of  Alley  et  als.  vs.  Rog&rs,  19  Grat.,  366,  388-89, 
decided  March  12,  1869.  On  the  24th  of  May,  1859,  G.  con- 
veyed real  estate  in  Henrico  to  W.  to  secure  four  negotiable 
notes  of  that  date,  payable  in  six,  twelve,  eighteen,  and  twenty- 
four  months  to  E.  who  lived  in  Kentucky.  The  notes  were  en- 
dorsed by  R.  and  deposited  by  him  in  the  F.  bank  for  collection. 

On  the  21st  of  February,  1861,  G.  conveyed  to  A.  this  real 
estate  with  much  more,  in  trust  for  the  payment  of  his  debts; 
debts  being  a  lien  upon  any  of  the  property  to  be  paid  -first. 

On  the  17th  of  April,  1863,  A.  sold  the  greater  part  of  the 
real  estate  conveyed  to  W.,  and  conveyed  the  same  by  deeds  of 
different  dates  to  the  purchasers,  and  some  of  these  purchasers 
conveyed  subsequently  to  others.  The  last  two  of  the  notes 
aforesaid  were  protested  for  non-payment  and  remained  in  the 
bank  until  the  14th  of  September,  1863,  when  A.  paid  them  to 
the  bank  in  Confederate  currency,  and  took  them  up,  Confeder- 
ate notes  being  then  the  only  currency,  and  being  generally 
received  by  the  banks  in  payment  of  notes  either  owned  by  the 
bank  or  deposited  for  collection,  and  being  then  depreciated  to 
about  twelve  for  one  in  gold.  But  the  deed  of  trust  to  W.  was 
not  released.  After  the  war  R.  filed  his  bill  claiming  that  the 
two  notes  were  still  due,  and  seeking  to  enforce  the  trust  for 
their  payment,  and  he  made  G.,  the  bank.  A.,  and  the  pur- 
chasers from  A.,  and  the  present  holders  parties.  Held :  If  it 
is  not  necessary  to  sell  the  whole  of  the  real  estate  conveyed  to 
W.  to  pay  said  notes,  the  part  not  sold  by  A.  is  first  to  be  sold, 
and  after  applying  the  proceeds  of  said  sale  to  the  payment 
pro  tanto  of  said  notes,  the  balance  due  upon  them  should  be 
raised  ratably  out  of  the  lots  now  held  by  the  purchasers  re- 
spectively iu  proportion  to  the  amounts  of  the  purchase-money 
for  which  they  were  respectively  sold  by  A.  on  the  17th  of  April, 
1863,  without  regard  to  the  dates  of  the  deeds  from  A.  to  the 
purchasers. 

In  the  case  of  TTarman  et  als.  vs.  Oh&rdorfer  et  als.  33  Grat., 
497,  p.  503-7,  decided  September,  1880.  A  deed  takes  effect 
from  its  delivery,  and  such  delivery,  like  any  other  fact,  may  be 
established  either  by  direct  proof  or  by  circumstances. 

Without  evidence  of  any  preceding  executory  agreements  be- 
tween the  parties,  or  any  evidence  of  the  time  of  the  delivery  of 
the  deeds,  except  what  may  be  inferred  from  their  dates,  P.,  a 


912  Citations  to  the  Code  of  Virginia. 

judgment-debtor,  by  one  deed  (dated  January  1,  1860,  acknow- 
ledged February  1,  1860,  and  recorded  April  13,  1860)  con- 
veyed one  tract  of  land  to  H.,  and  by  another  deed  (dated  Feb- 
ruary 1,  1860,  acknowledged  February  1,  1860,  and  recorded 
February  24,  1860)  conveyed  another  tract  to  B.  In  proceed- 
ings to  subject  both  tracts  to  the  payment  of  judgments  ob- 
tained against  P.  prior  to  either  deed,  held :  The  tract  to  B.  was 
the  last  aliened,  and  therefore  first  liable  to  satisfy  the  judgments. 

If  a  deed  has  a  date,  the  law  intends  it  to  have  been  delivered 
at  the  date  ;  and  when  it  is  proved  by  witnesses,  who  say  nothing 
as  to  the  time  of  delivery,  and  is  recorded,  it  stands  recorded 
as  a  deed  proved  to  have  been  delivered  at  its  date.  There  is 
no  distinction  in  principle  between  the  presumption  of  delivery 
arising  from  the  proof  by  witnesses  and  the  acknowledgment  be- 
fore a  justice  or  notary. 

The  provision  that  every  deed,  etc.,  shall  be  void  as  to  credi- 
tors and  subsequent  purchasers  for  valuable  consideration  with- 
out notice,  until  and  except  from  the  time  it  is  duly  admitted  to 
record,  etc.,  does  not  apply  to  purchasers  of  different  tracts  of 
land  from  the  same  vendor,  but  refers  only  to  subsequent  pur- 
chasers of  the  same  subject  as  that  embraced  in  the  instrument 
declared  to  be  void. 

Where  several  lots  of  land  are  sold  on  the  same  day,  on  the 
same  terms,  to  several  parties,  all  of  whom  are  immediately  put 
into  possession  under  the  same  agreement  as  to  the  deeds  con- 
veying the  same  land  and  the  trust  deeds  to  secure  the  pur- 
chase-money, although  the  deeds  conveying  them  are  really 
delivered  and  recorded  at  different  times,  they  will  all  be  re- 
garded as  alienations  within  the  meaning  of  the  statute  as  of 
the  same  day  (day  of  sale),  and  in  subjecting  them  to  the  pay- 
ment of  a  judgment  docketed  against  a  vendor  at  the  time  of  the 
sale,  each  lot  must  bear  its  proportion  according  to  their  rela- 
tive values  on  the  day  of  sale,  and  subjected  in  accordance  with 
the  principles  of  Horton  vs.  Bond,  28  Grat.,  815. 

In  the  case  of  Whitten,  etc.,  vs.  Saunders,  etc.,  75  Va.,  563,  de- 
cided August  11,  1881.  A  debtor  possessed  of  a  large  tract  of 
land  conveys  a  part  of  the  same  by  deed  of  gift  to  one  of  the 
sons,  who  thereafter  sells  it  to  another  person  for  valuable  con- 
sideration. The  father-debtor  then,  by  subsequent  deeds  for 
value,  executed  at  different  times,  conveys  nearly  the  whole  of 
his  said  land  to  different  purchasers.  On  proceedings  to  sub- 
ject said  land  to  the  payment  of  a  portion  of  the  purchase- 
money,  for  which  the  vendor  to  the  debtor  had  retained  his 
vendor's  lien,  held:  The  lands  will  be  held  in  the  inverse 
order  of  the  alienations  from  the  debtor,  and  this,  too,  although 
one  of  the  alienees  is  a  purchaser  from  the  son  of  the  debtor, 
who  held  under  a  voluntary  conveyance  from  the  debtor. 


Citations  to  the  Code  of  Virginia.  913 

In  the  case  of  Dickinson  vs.  Clement^  87  Va.,  41,  decided  No- 
Tember  6,  1890,  it  was  held :  Where  decree  to  sell  debtor's 
land  in  judgment-creditor's  suit,  and  the  creditors  garnishee 
bonds  of  previous  purchasers  of  land  from  debtor,  but  realize 
nothing.  Held:  Debtor  is  not  entitled  to  credit  on  the  judg- 
ments for  amount  of  said  bonds,  and  in  fact  has  no  right  to  go 
on  the  lands  sold  until  the  lands  retained  by  him  have  been  ex- 
hausted. 

Section  3576. 

See  references  to  Sections  3667  and  3568. 

In  the  case  of  Rhea  et  als.  vs.  Preston,  75  Va.,  757  and  767- 
768,  decided  July  21,  1881.  K.  sold  and  conveyed  to  T.  a  tract 
of  land,  reserving  a  lien  for  the  payment  of  the  purchase-money. 
Afterwards,  and  on  the  same  day,  T.  executed  two  deeds  of 
trust  to  secure  the  payment  of  two  certain  debts  to  D.,  in  one 
of  which  deeds  the  tract  purchased  from  K.  is  conveyed  to  se- 
cure one  debt,  K.  uniting  in  this  deed ;  and  in  the  other  deed  a 
tract  called  the  "Mill  tract"  and  other  tracts  of  land.  Held: 
That  K.  had  the  right  to  require  that  the  debt  to  D.  shall  be 
paid  by  the  "Mill  tract,"  on  which  D.,  as  between  himself  and 
K.,  has  the  exclusive  lien,  and  leave  the  other  tract  to  be  ap- 
plied to  K.'s  lien;  and  K.'s  equity  in  this  respect  is  prior  and 
paramount  to  that  of  P.  to  have  the  "  Mill  tract."  on  which  his 
lien  rested,  exonerated  from  the  D.  debt  for  his  benefit. 

Section  3577. 

In  the  case  of  Yates's  Executor  vs.  Pickett,  4  Munf.,  104,  de- 
cided March  9,  1813,  it  was  held:  A  plea  of  the  act  of  limita- 
tions in  bar  oi  scire  facias  to  revive  a  judgment  cannot  be  re- 
pelled by  a  replication  that  the  defendant,  within  five  years  next 
before  the  suing  out  of  the  scire  facias,  promised  to  pay  the 
judgment. 

If  a  replication  be  insufficient,  and  be  demurred  to  as  such, 
yet,  if  the  plea  be  also  insufficient,  the  court  will  go  up  to  the 
first  fault  and  give  judgment  for  the  plaintiff. 

In  the  case  of  Gee  vs.  Hamilton  et  ux.,  6  Munf.,  32,  decided 
December  4,  1817,  it  was  held:  The  right  to  issue  a  scire  facias 
upon  a  judgment  is  not  barred  by  the  act  of  limitations  in  a 
case  where  execution  was  issued  in  due  time,  and  returned  "no 
effects,"  though  more  than  ten  years  elapsed  between  the  re- 
turn of  the  execution  and  the  date  of  the  scire  facias. 

Issue  being  joined  on  the  plea  of  "no  such  record"  and  on 
the  act  of  limitations,  if  the  jury  find  for  the  plaintiff  on  the 
second  plea,  and  the  court,  without  taking  any  notice  of  the 
first  plea,  enter  judgment,  such  judgment  ought  to  be  reversed, 
notwithstanding  on  previous  pleadings,  which,  by  consent,  were 

58 


914  Citations  to  the  Code  of  Virginia. 

set  aside,  the  court  had  pronounced  that,  in  fact,  there  was  such 
a  record. 

In  the  case  of  Peyton^ s  Administrator  vs.  Carres  Executor,  1 
Rand.,  436,  decided  May,  1823,  it  was  held :  A  judgment  ob- 
tained against  a  testator  in  his  lifetime,  and  not  revived  against 
his  personal  representative  after  his  death,  within  five  years 
from  the  time  of  his  qualification,  is  barred  by  the  statute  of 
limitations.  The  operation  of  the  statute  will  not  be  prevented 
by  a  scire  facias  sued  out  within  the  five  years,  on  which  the 
plaintiff  suffered  a  non-suit. 

In  the  case  of  Randolph's  Administratrix  vs.  Randolph,  3 
Rand.,  490,  decided  October,  1825,  it  was  held:  There  is  no 
limitation  by  statute  to  an  action  of  debt,  or  sci.  fa.  on  a  judg- 
ment,* except  only  in  the  case  of  a  judgment  on  which  no  execu- 
tion has  been  taken  out,  and  except  in  cases  of  executors  and. 
administrators,  on  a  judgment  against  their  testator  or  intes- 
tate. 

In  the  case  of  Lipscomb's  Administrator  vs.  Davis's  Admin- 
istrator, 4  Leigh,  303,  decided  February,  1833,  it  was  held: 
The  statute  of  limitations,  whereby  the  remedy  on  a  judgment 
by  debt  or  scire  facias  is  limited  to  ten  years,  is  no  bar  to  a 
motion  on  a  forthcoming  bond  of  more  than  ten  years'  standing. 

In  the  case  of  l^leming's  Executor  vs.  Dunlnp  dh  £uchana?i, 
etc.,  4  Leigh,  338,  decided  March,  1833,  judgment  recovered  by 
D.  P.  &  Co.  against  F.  in  September,  1810,  and  execution  sued 
out  in  the  same  month,  and  another  in  October,  1815,  but  neither 
returned ;  to  a  scire  facias  to  revive  the  judgment  against  F.'s 
executor  sued  out  in  July,  1826,  defendant  pleads  in  bar  the 
statute  of  limitations ;  plaintiffs  reply  to  the  two  executions  sued 
out  in  September,  1810,  and  October,  1815,  on  demurrer  to  this 
replication.     Held:  The  statute  is  a  bar  to  the  scire  facias. 

But  it  seems,  by  the  opinion  of  Tucker,  P.,  that  debt  would 
lie  on  the  judgment,  and  the  statute  would  not  be  a  bar  to  that 
action. 

In  the  case  of  Manns  vs.  Elinn's  Administj'ator,  10  Leigh,  93 
(2d  edition,  97),  decided  February,  1839.  Judgment  is  recov- 
ered against  A.  in  his  lifetime ;  A.  dies,  and  upon  the  supjDosi- 
tion  of  his  intestancy,  administration  of  his  estate  is  granted  to 
B.;  a  will  of  A.'s  being  afterwards  found  and  proved,  the  former 
grant  of  administration  is  revoked,  and  administration,  with  the 
will  annexed,  granted  to  C,  and  suit  is  brought  on  the  judg- 
ment, after  five  years  had  elapsed  from  the  grant  of  administra- 
tion to  the  rightful  administrator,  C.  Held:  The  five  years 
limitation  prescribed  by  the  statute  began  to  run,  not  from  the 
void  grant  of  administration  to  B.,  but  from  the  qualification  of 
C,  the  rightful  administrator,  and  so  the  statute  was  not  a  bar 
to  the  suit. 


Citations  to  the  Code  of  Virginia.  915 

In  the  case  of  TlilVs  Executor  vs.  Fox^s  Administrator,  10 
Leigh,  587  (2d  edition,  615),  decided  February,  1840.  A  decree 
for  a  sum  of  money  provides  that  if  no  property  of  the  debtor 
can  be  found,  other  than  that  conveyed  by  him  by  a  deed  of  trust 
and  mortgage,  then  he  shall  deliver  up  the  trust  and  mortgage 
property  to  the  marshal,  to  be  sold  to  satisfy  the  money  secured 
by  the  trust  and  mortgage,  and  then  to  satisfy  the  decree.  The 
debtor  dying,  a  bill  of  revivor  and  supplement  is  filed  against 
his  administrator,  to  obtain  payment  of  the  decree  out  of  the 
assets  in  his  hands.  And  the  administrator  by  his  answer  relies 
upon  the  statute  of  limitations.  Held :  The  decree  in  this  case 
is  not  a  final  decree,  and,  if  it  were,  is  not  such  a  one  as  the 
statutes  can  apply  to. 

For  the  reference  to  11  Leigh,  2,  see  nnte^  Section  2921. 

In  the  case  of  Herrington  vs.  Ilarkinss  Administrators,  1  Rob., 
591  (2d  edition,  624).  Where  an  action  of  debt  is  brought  on  a 
judgment  after  ten  years  from  the  date  thereof,  and  the  defend- 
ant Nnshes  to  avail  himself  of  the  statute  of  limitations,  it  is 
necessary  that  he  should  do  so  by  plea.  A  demurrer  to  the 
declaration  is  not  the  proper  mode  to  take  advantage  of  the 
statute. 

The  statute  1  Rev.  Code  1819,  Chapter  128,  Section  5,  p.  489, 
declaring  that  where  execution  hath  issued  and  no  return  is 
made  thereon,  the  party  in  whose  favor  the  same  was  issued 
may  obtain  other  executions  for  ten  years  from  the  date  of  the 
judgment,  and  not  after,  does  not  bar  such  party  from  maintain- 
ing an  action  of  debt  on  the  judgment  after  ten  years. 

In  the  case  of  Braxton  vs.  Wood's  Adm,hdstrators,  4  Grat., 
25,  decided  April,  1847,  it  was  held:  A  suit  brought  by  the 
judgment-creditor  to  enforce  satisfaction  of  his  judgment  sus- 
pends the  operation  of  the  statute  of  limitations  during  its 
pendency.  But  if  it  is  dismissed  without  satisfaction  of  the 
judgment,  it  will  not  prevent  the  bar  of  the  statute  to  another 
suit  brought  after  its  dismissal. 

In  the  case  of  Smith's  Executor  vs.  Charlton's  Administra- 
tors, 7  Grat.,  425,  decided  May  11,  1851,  it  was  held:  A  judg- 
ment quando  accidevint  does  not  come  within  the  operation  of 
the  statute  of  limitations  in  relation  to  judgments. 

In  the  case  of  BeaVs  Administrator  vs.  Botetourt  Justices,  f or y 
etc.,  10  Grat.,  278,  decided  July,  1853,  it  was  held:  In  such  an 
action  a  plea  that  the  execution  issued  irregularly  and  unlaw- 
fully after  the  expiration  of  more  than  a  year  and  a  day  from 
the  time  of  the  decree,  without  any  previous  proceeding  by  way 
of  scire  facias  or  otherwise  to  authorize  the  same,  presents  an 
immaterial  issue,  such  an  irregiilarity  would  not  render  the  exe- 
cution void,  but  only  voidable,  and  it  cannot  be  avoided  by 
pleading  or  proof  in  this  collateral  suit. 


916  Citations  to  the  Code  op  Vikginia. 

In  the  case  of  Richardson  {Administrator)  vs.  Prince  George 
Justices,  11  Grat.,  190,  decided  April,  1854,  it  was  held:  The 
scire  facias  stated  that  the  judgment  had  been  suspended  by  in- 
junction. This  was  an  unnecessary  allegation,  and  may  be 
treated  as  surplusage,  and  a  plea  that  the  judgment  had  not 
been  suspended  by  injunction  offered  no  bar  to  the  scire  facias. 

The  scire  facias  further  stated  that  the  injunction  had  been 
dissolved  is  bad,  and  an  issue  made  up  upon  it  is  immaterial. 
Therefore,  though  the  court  admits  improper  evidence  upon  it, 
offered  by  the  plaintiff,  it  is  not  cause  for  reversing  the  judgment. 

The  pendency  of  an  injunction  to  a  judgment  at  law  will  not 
prevent  the  revival  of  the  judgment  upon  the  death  of  either 
the  plaintiff  or  defendant,  and  the  injunction  operates  upon  the 
judgment  on  the  scire  facias  to  restrain  and  prohibit  the  issue 
of  execution  thereon. 

In  the  case  of  Hutsonspiller^ s  Administrators  vs.  Stover's  Ad- 
m,inistrators,  12  Grat.,  579,  decided  September  7,  1855,  it  was 
held:  Upon  the  dissolution  of  an  injunction  to  a  judgment, 
execution  may  issue  thereon  within  a  year  and  a  day  from  the 
dissolution  of  the  injunction  without  a  scire  facias,  though  the 
injunction  was  in  force  for  more  than  ten  years.  The  statute 
of  limitations  to  judgments  does  not  run  whilst  an  injunction  to 
the  judgment  is  in  force. 

If  a  defendant  in  a  judgment  dies  whilst  an  injunction  to  the 
judgment  is  pending,  though  the  injunction  may  not  be  dis- 
solved for  more  than  five  years  after  his  death,  the  statute  re- 
quiring judgments  to  be  revived  within  five  years  does  not  run 
during  the  pending  of  the  injunction ;  and  the  judgment  may  be 
revived  after  the  five  years  from  the  death  of  the  defendant; 
and  this  though  the  judgment  might  have  been  revived  while 
the  injunction  was  in  force. 

Upon  a  scire  facias  to  revive  a  judgment  which  had  been 
suspended  by  an  injunction  for  forty-six  years,  issue  was  made 
upon  the  plea  of  payment;  and  upon  the  trial  the  court  in- 
structed the  jury  that  the  pending  of  said  injunction  cause  re- 
pelled the  legal  presumption  of  payment  which  would  have 
arisen  from  lapse  of  time  if  said  injunction  had  not  been  pend- 
ing. Held:  This  instruction  was  proper,  and  it  is  not  neces- 
sary to  distinguish  to  the  jury  between  the  legal  presumption 
and  the  natural  presumption  arising  from  lapse  of  time. 

In  the  case  of  Shannon  vs.  McMuUen,  25  Grat.,  211,  decided 
July  1,  1874,  it  was  held :  When  process  is  returnable  process, 
if  the  officer  make  return  of  the  performance  of  acts  beyond  his 
duty  under  such  process,  such  return  will  be  invalid  as  to  such 
parts,  and  will  not  be  evidence,  though  the  addition  of  such 
parts  will  not  render  the  whole  return  void,  but  it  will  be  good 
to  the  extent  he  was  authorized  to  make  such  return. 


Citations  to  the  Code  of  Virginia.  917 

In  the  case  of  Brown  {Administrator)  vs.  Campbell  et  als.,  35 
Orat.,  402,  decided  July,  1880,  it  was  held,  pp.  404-'5 :  Under 
the  circumstances  of  this  case  held,  the  proof  is  sufficient  to 
establish  the  payment  of  a  debt  on  which  judgment  had  been 
rendered  and  execution  issued  twenty-three  years  before  the 
filing  of  a  bill  to  enforce  the  payment  of  the  judgment. 

Where  three  executions  have  been  issued  upon  a  judgment 
and  two  of  them  returned  by  the  officer,  the  statute  of  limita- 
tions is  twenty  years  from  the  return-day  of  the  execution  on 
which  a  return  was  made. 

In  the  case  of  Mc  Veigk  vs.  Bank  of  Old  Dominion,  76  Va.,  267. 

Scire  Facias. — Neither  declaration  nor  rule  is  necessary  upon 
a  scire  facias  to  revive  a  judgment.  If  scire  facias  is  return- 
able to  rules,  and  defendant  makes  default,  there  should  then  be 
an  award  of  execution,  which,  if  not  set  aside  at  the  next  term, 
becomes  a  final  judgment  as  of  the  last  day  of  the  term.  No 
order  of  the  court  is  necessary  in  such  case,  but  could  preju- 
dice no  one. 

In  the  case  of  Sutton  et  als.  vs.  Marye  (Auditor),  81  Va ,  329, 
decided  January  14,  1886.  The  Commonwealth  got  judgment 
against  the  sheriff  of  W.  county  and  his  sureties,  and  had  f.  fa. 
issued  and  levied.  Upon  return  thereof  it  had  a  venditioni  ex- 
ponas issued.  Instead  of  this  writ  going  to  the  sheriff,  it  was 
taken  in  charge  by  the  auditor  of  public  accounts.  Nothing 
was  done  and  no  process  issued  for  over  sixteen  years,  when  in 
December,  1884,  an  alias  fi.  fa.  was  issued,  levied,  and  returned, 
and  thereupon  a  writ  of  venditioni  exponas  was  issued.  The 
siireties  moved  the  court  below  to  quash  the  alia^  writ  of  vendi- 
tio7ii  exponas,  which  motion  was  denied.  On  error,  held:  The 
writ  of  venditioyii  exponas,  as  well  as  the  alias  f.  fa.,  was  issued 
without  authority  of  law,  and  should  be  quashed. 

In  the  case  of  Hamilton  vs.  McConkey ,  83  Va.,  533,  decided 
June  23,  1887,  it  was  held :  Under  the  Code  of  1860,  Chapter 
186,  Section  15,  it  is  required  that  the  officer  shall  return  upon 
a  writ  oifi.fa.  "whether  the  money  is,  or  cannot  be,  made.' 
A  return  of  "  not  levied  by  reason  of  the  stay  law  "  is  a  return, 
substantially,  that  the  money  cannot  be  made. 

The  limitation  within  which  an  alias  execution  may  be  issued 
is  twenty  years  where  there  is  a  return  of  an  officer ;  and  whe- 
ther such  return  be  true  or  false,  sufficient  or  insufficient,  is  not 
a  question  which  can  arise. 

In  the  case  of  McCarthy  vs.  Ball,  82  Va.,  872,  decided  Feb- 
ruary 10,  1887,  it  was  held :  Courts  of  equity  follow  courts  of 
law  as  respects  this  statute.  If  a  legal  claim,  barred  at  law,  is 
asserted  in  equity,  it  is  equally  ban-ed  there.  Thus,  liens  are 
creatures  of  statutes,  and  cannot  be  enforced  in  equity  after 
they  have  ceased  to  be  euforcible  at  law. 


918  Citations  to  the  Code  op  Virginia. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  697. 

In  the  case  of  Kennerly  vs.  Schwartz,  11  Va.  Law  Journal, 
605,  decided  September  22,  1887,  it  was  held :  Where  a  judg- 
ment has  been  obtained  against  one  who  is  not  a  householder 
or  head  of  a  family,  and  has  become  a  lien  upon  his  land,  and 
he  subsequently  becomes  a  householder  or  head  of  a  family,  the 
judgment  has  priority  over  his  claim  to  a  homestead  exemption 
in  the  land ;  but  he  may  claim  such  exemption  in  the  land  after 
satisfying  the  judgment. 

In  the  case  of  Straus  vs.  Bodeker's  Executrix  et  als.,  86  Va., 
543,  decided  December  5,  1889,  it  was  held :  Where  non-resi- 
dent judgment-creditors  are  summoned  by  order  of  publication^ 
and  no  order  is  made  to  suspend  the  issuing  of  executions,  a 
suit  to  enforce  a  contract  for  the  sale  of  the  judgment-debtor's 
land  is  no  such  "legal  process"  as  suspends  judgment-credi- 
tors' right  to  sue  out  execution,  and  stops  the  running  of  the 
statute  of  limitations  against  such  judgments. 

In  the  case  of  Brovm  vs.  Butler,  87  Va.,  621,  decided  April, 
9,  1891,  it  was  held :  In  April,  1887,  suit  was  brought  to  enforce 
the  liens  of  two  judgments,  one  dated  February  23,  1866,  the 
other  dated  November  2,  1866,  both  duly  docketed,  but  execu- 
tion had  been  issued  on  neither.  Held :  Eight  to  enforce  had 
ceased  by  limitation. 

CHAPTEE  CLXXV. 

Section  3583. 

In  the  case  of  Tolson  vs.  Elwes,  1  Leigh,  436,  decided  Octo- 
ber, 1829,  it  was  held :  Execution  sued  out  in  the  name  of  W., 
endorsed  for  the  benefit  of  E.,  held  that  E.  cannot  maintain  a 
motion  in  his  own  name  against  the  sheriff  for  the  amount  levied 
on  the  execution,  or  for  his  default  in  service  and  return  of  the 
writ. 

In  the  case  of  Meze  vs.  Howver,  1  Leigh,  442,  decided  Octo- 
ber, 1829,  it  was  held :  A  fl.  fa.  is  sued  out  by  M.  and  M.  on 
judgment  recovered  by  them ;  they  endorse  on  the  writ  that  it 
is  for  the  benefit  of  H.  The  sheriff  levies  it  and  takes  forthcom- 
ing bond  payable  to  H.     Held :  The  bond  is  naught. 

In  the  case  of  Fletcher  vs.  Chapman,  2  Leigh,  560,  decided 
March,  1831.  Judgment  is  rendered  against  a  sheriff  for  a  fine 
for  the  alleged  default  of  his  deputy,  the  sheriff  making  no  de- 
fence, nor  giving  any  notice  to  the  deputy  of  the  proceeding ;  this 
judgment  is  erroneous  in  point  of  law,  and  unjust  upon  the 
merits.  Held :  In  such  case,  the  sheriff  is  not  entitled  to  recover 
the  amount  of  the  fine  from  the  deputy. 

In  the  case  of  Burnett  et  als.  vs.  Harwell  et  als.,  3  Leigh,  89, 
decided  October,  1831,  it  was  held:    Under  the  provisions  of 


Citations  to  the  Code  of  Virginia.  919 

the  statute,  an  action  cannot  be  maintained  on  an  executor's 
bond  at  the  relation  of  an  assignee  of  a  legatee  of  a  decree  for 
legacy;  such  action  can  only  be  maintained  at  the  relation  of 
the  person  who  has  the  legal  right  to  the  debt. 

In  the  case  of  Governor  for  Leighton  vs.  Hinchtnan  et  als., 
1  Grat.,  156,  decided  September,  1844,  it  was  held:  The  action 
against  a  high  sheriff  and  his  sureties  upon  his  official  bond  for 
the  misconduct  of  his  deputy  in  his  proceedings  on  an  execu- 
tion in  his  hands  must  be  at  the  relation  of  the  plaintiff  in  the 
execution,  and  cannot  be  sustained  at  the  jelation  of  the  parties 
for  whose  benefit  the  execution  issued. 

In  the  case  of  Mallop's  Administrator  \s.  Scarhurgh  et  als., 
6  Grat.,  1,  decided  April,  1848,  it  was  held:  A  motion  to  quash 
a  writ  and  inquisition  founded  on  a  judgment  may  be  in  the 
name  of  the  party  on  the  record,  and  must  be  against  such  a 
party. 

A  stranger  having  acquired  an  equitable  right  to  the  benefit 
of  an  execution,  or  to  the  property  to  which  it  is  levied,  will 
generally  have  authority  to  sue  out  and  conduct  the  process,  or 
to  object  to  its  regularity  or  validity ;  but  he  must  do  it  in  the 
name  of  a  legal  party  to  the  process,  or  one  who  can  be  made 
to  do  so.  And  his  authority  to  use  the  name  of  the  party  to 
the  process  of  a  court  of  law  will  be  so  far  recognized  by  such 
court  as  to  preclude  the  intervention  of  such  party  for  the  pur- 
pose of  defeating  it. 

In  the  case  of  Pates  vs.  St.  Clair,  11  Grat.,  22,  decided  April, 
1854,  it  was  held :  It  was  not  improper,  even  before  the  statute, 
to  render  judgment  for  costs  in  favor  of  the  defendant  against 
a  person  for  whose  benefit  a  suit  was  brought  when  the  de- 
fendant succeeded  in  the  case. 

In  a  suit  brought  in  the  name  of  one  person  for  the  benefit 
of  another,  a  judgment  stating  that  the  parties  appeared  by 
their  attorneys,  and  by  consent  the  suit  was  dismissed,  and 
judgment  for  defendant's  costs  against  the  person  for  whose 
benefit  the  suit  was  brought,  it  must  be  held  that  the  consent  is 
the  consent  of  the  latter,  and  that  the  judgment  is  proper. 

Section  3585. 

In  the  case  of  Garland  vs.  Bugg,  5  Munf.,  166,  decided  Octo- 
ber, 1816,  it  was  held:  After  a  distringas  upon  a  judgment  in 
detinue  has  been  returned  executed,  but  without  satisfaction,  if 
the  court,  on  the  plaintiff's  motion,  direct  the  distringas  to  be 
superseded  so  far  as  it  relates  to  the  specific  property,  and  to 
be  executed  as  to  the  alternative  value,  such  order  is  not  erro- 
neous ;  but  it  seems  the  plaintiff  may  have  a  new  distringas,  to 
be  executed  as  to  such  value. 

After  the  distriiigas  upon  a  judgment  in  detinue  has  been  exe- 


920  Citations  to  the  Code  of  Vieginia. 

cuted  without  satisfaction,  or  superseded  as  to  the  specific 
property,  and  directed  to  be  executed  as  to  the  alternative 
value,  if  it  appear  to  the  court  that,  in  consequence  of  the  de- 
fendant's persisting  in  withholding  the  specific  property,  the 
plaintiff  cannot  get  it  by  the  distringas,  a  ca.  sa.  or  ji.  fa.  may 
be  directed  to  be  issued  for  the  alternative  value. 

Notice  of  a  motion  to  supersede  distringas,  or  for  a  ca.  sa.  or 
a  fi.  fa.,  in  lieu  thereof,  need  not  be  given  by  the  plaintiff  to 
the  defendant. 

In  the  case  of  Jordan  {Administrator)  vs.  Williams,  3  Eand., 
501,  decided  October,  1825,  it  was  held :  On  a  distringas  fi.  fa. 
the  sheriff  cannot  distrain  the  very  property  for  which  the  exe- 
cution issued,  nor  can  he  seize  and  sell  it  to  pay  the  damages 
mentioned  in  the  execution. 

Section  3586. 

See  the  case  of  Garland  vs.  Bugg,  5  Munf.,  166,  quoted  supra. 
Section  3585. 

Section  3587. 

In  the  case  of  Price  vs.  Crump,  2  H.  &  M.,  89,  decided  March 
11,  1808,  it  was  held :  Money  lent  lona  fide  to  a  sheriff,  and 
applied  by  him  to  his  own  use  prior  to  receiving  a  writ  oi  fieri 
facias  against  the  lender,  is  not  liable  to  satisfy  such  execution, 
either  in  law  or  equity,  notwithstanding  the  same  money  was 
originally  deposited  in  his  hands  as  a  pledge  for  certain  pur- 
poses. 

In  the  case  of  Bullitt's  Executors  vs.  Winstons,  1  Munf.,  269, 
decided  March  22,  1810,  it  was  held:  A  writ  oi  fieri  facias  may 
be  levied  without  touching  or  removing  the  property,  provided 
it  be  in  the  immediate  power  of  the  sheriff,  and  admitted  by 
him  to  have  been  taken  to  satisfy  the  debt.  The  sheriffs  per- 
mitting the  property  to  remain  in  the  possession  of  a  third  per- 
son or  of  the  defendant,  under  a  verbal  engagement  to  produce 
it  on  the  day  of  sale,  does  not  prevent  the  fi.  fa.  from  having 
been  levied  in  contemplation  of  law,  the  sheriff  being  responsi- 
ble to  the  plaintiff  if  the  property  be  not  produced. 

Parol  evidence  is  admissible  to  prove  that  a  fi.fa.  was  levied, 
though  no  return  was  made  upon  it. 

A  sheriff  may  be  permitted,  by  order  of  court,  to  make  a  re- 
turn upon  an  execution,  or  to  amend  it  according  to  the  truth 
of  the  case,  at  any  time  after  the  return-day. 

A  plaintiff,  by  directing  the  sheriff  to  put  off  the  sale  of  pro- 
perty taken  in  execution  to  a  day  after  the  return-day,  and  to 
suffer  it  to  remain  in  the  possession  of  the  principal  defendant 
or  his  securities,  releases  the  securities  altogether  from  that  or 
any  subsequent  execution,  such  direction  being  given  without 
their  concurrence.     In  such  a  case  the  plaintiff's  adding  to  the 


Citations  to  the  Code  of  Virginia.  921 

direction  the  words  "  holding  the  property  subject  to  the  said 
execution  "  cannot  prevent  the  release  from  operating. 

An  appeal  from,  or  supersedeas  to,  an  order  quashing  an  exe- 
cution against  two  defendants  need  not,  if  one  of  them  die,  be 
revived  against  his  representative,  but  should  be  proceeded  on 
as  to  the  other  only. 

In  the  case  of  Dix  vs.  Evans,  3  Munf.,  308,  decided  Novem- 
ber 20,  1812,  it  was  held:  The  sheriff's  failing  to  mention  in 
his  return  of  an  execution  one  of  the  negroes  on  whom  it  was 
levied  is  no  ground  for  reversing  a  judgment  on  a  forfeited 
forthcoming  bond  in  which  that  negro  is  mentioned  as  one  of 
those  on  whom  such  execution  was  levied. 

It  seems  that  where  a  capias  ad  satisfaciendum  is  executed 
at  any  time  before  the  return-day  thereof,  the  sheriff  may  re- 
ceive property  tendered  by  the  debtor  in  discharge  of  his  body 
out  of  custody,  and  may  appoint  a  day  of  sale  posterior  to  the 
return-day ;  and  that  a  bond  for  the  forthcoming  of  such  pro- 
perty is  good  in  law,  though  dated  after  such  return-day. 

In  the  case  of  Lusk  vs.  Hamsay^  3  Munf.,  417,  decided  No- 
vember 9,  1811,  it  was  held:  The  lien  by  virtue  of  the  wfit  of 
fieri  f (I das  upon  the  property  of  the  debtor  is  not  released  by 
his  giving  a  forthcoming  bond,  but  continues  until  such  bond  is 
forfeited. 

In  the  case  of  Steele  vs.  Brown  et  als.,  2  Va.  Cases,  246,  de- 
cided by  the  General  Court,  June,  1821,  it  was  held:  A  writ  of 
fi.  fa.  may  be  levied  on  ready  money  in  the  possession  of  tho 
defendant. 

For  the  reference  to  2  Leigh,  268  and  280,  see  case  of  Coutta 
vs.  Walker,  ante.  Section  3567. 

In  the  case  of  Turnhull  {Executor,  etc.)  vs.  Claihornes,  3  Leigh, 
392,  decided  December,  1831.  Robertson,  executor  of  Cole,  re- 
covers judgment  against  Claibomes,  and  sues  out  execution 
thereon ;  before  the  execution  is  delivered  to  the  sheriff,  Robert- 
son dies ;  the  execution  being  then  delivered  to  the  sheriff,  he 
levies  it  on  property  of  defendant,  and  takes  a  forthcoming  bond 
payable  to  Robertson,  executor  of  Cole.  Held :  The  execution 
was  properly  levied,  though  Robertson  was  dead  before  it  was 
delivered,  and  the  forthcoming  bond  was  rightly  taken  to  Rob- 
ertson, as  executor,  and  was  good. 

In  the  case  of  Governor  for  Usher  vs.  Yan  Meter,  9  Leigh, 
18,  decided  November,  1837.  A  sheriff  having  levied  a  ;?.  fa. 
on  goods  of  the  debtor,  receives  an  order  to  postpone  the  sale 
from  an  unauthorized  person,  and  postpones  the  sale  accord- 
ingly, and  the  sheriff  relies  on  the  acquiescence  of  the  plaintiff 
in  the  order  to  discharge  him  from  liability  for  conforming  with 
it.  Held :  It  is  incumbent  on  him  to  prove  such  acquiescence, 
and  the  time  of  it,  for  if  it  occurred  after  the  sale  day  of  the 


922  Citations  to  the  Code  of  Virginia. 

execution,  it  would  be  of  little  weight,  since  then  all  the  mis- 
chief had  been  done. 

When  goods  have  been  taken  in  execution  under  &Jl.fa.^  a 
direction  given  by  the  creditor  to  the  sheriff  to  restore  the  goods 
to  the  possession  of  the  debtor  is  fraudulent  and  destroys  the 
lien  of  the  execution  on  the  goods ;  but  a  mere  order  to  post- 
pone the  sale  without  collusion  does  not  affect  the  lien  of  the 
execution. 

A  deputy  sheriff  having  levied  a  fl.  fa.  on  the  goods  of  the 
debtor,  receives  an  order  from  the  creditor  to  postpone  the  sale 
for  two  months,  holding  the  property  subject  to  the  sheriff's 
control  to  satisfy  the  debt,  and  the  deputy  sheriff  postpones  the 
sale,  but  instead  of  holding  the  property,  restores  it  to  the 
debtor,  whereby  the  Hen  of  the  execution  is  destroyed  and  the 
debt  ultimately  lost.  Held :  This  is  official  misconduct  in  the 
deputy,  for  which  the  sheriff  and  his  sureties  are  liable  in  an 
action  on  his  ofl&cial  bond. 

In  the  case  of  Pegram  vs.  May,  9  Leigh,  176,  decided  Jan- 
uary, 1838.  A  creditor  delivers  a  jl.  fa.  to  a  deputy  sheriff  act- 
ing in  a  different  district  of  the  county  from  that  in  which  the 
debtor  resides,  in  order  by  such  dehvery  to  bind  the  debtor's 
property,  but  with  directions  to  the  deputy  to  hold  it  till  a 
future  day,  and  then  to  transfer  it  to  the  deputy  of  the  district 
in  which  the  debtor  resides,  to  be  by  him  levied,  unless  the 
debt  should  be  paid  in  the  meantime,  or  unless  the  debtor 
should  bring  his  property  to  the  district  of  the  first  deputy  to 
be  sold,  in  which  case  the  first  deputy  was  to  levy  the  execu- 
tion upon  it.  Held:  The  execution  binds  the  goods  of  the 
debtor  from  the  date  of  its  delivery  to  the  first  deputy. 

In  the  case  of  Cari'^s  Administrators  vs.  Glasscock's  Adrain- 
istratorSy  3  Grat.,  343,  decided  October,  1846,  it  was  held :  The 
lien  which  a  creditor  acquires  by  a  levy  of  his  execution  upon 
personal  property,  if  not  enforced  by  a  sale  thereof,  is  only 
temporary,  and  expires  with  the  authority  to  sell  under  the  exe- 
cution. Therefore  a  surety  of  the  debtor  who  afterwards  pays 
the  debt  has  no  right  to  be  subrogated  to  the  lien  of  the  execu- 
tion upon  this  property. 

In  Langster's  Case  et  als.,  17  Grat.,  124,  decided  October 
29,  1866,  it  was  held,  pp.  129-32 :  A  sheriff  who  takes  the  pro- 
perty of  A.  under  an  attachment  against  the  property  of  B. 
thereby  not  only  commits  a  trespass,  but  plainly  violates  the 
duty  of  his  office,  and  breaks  the  condition  of  his  official  bond ; 
and  his  sureties  are  liable  for  his  act. 

In  the  case  of  Walker  et  als.  vs.  The  Comtnonwealtli,  18  Grat., 
13,  decided  October,  1867,  it  was  held :  The  levy  of  an  execu- 
tion of  fi.  fa.  does  not  divest  the  defendant  in  the  execution  of 
the  property  and  transfer  the  title  to  th6  plaintiff  or  the  sheriff. 


Citations  to  the  Code  op  Virginia.  923 

Only  a  special  interest  is  vested  in  the  sheriff  as  a  mere  bailee, 
to  enable  him  to  keep  the  property  safely,  and  defend  it  against 
wrong-doers.  It  is  in  the  custody  of  the  law,  and  the  sheriff 
has  a  naked  power  to  sell  it  and  pass  the  title  of  the  owner  to 
the  purchaser. 

A  plaintiff  may  always,  with  the  consent  of  all  the  defendants, 
abandon  a  levy  upon  the  property  of  all  or  any  of  them,  and 
afterwards  sue  out  a  new  execution. 

If  the  defendants  in  an  execution  be  a  principal  and  his  sure- 
ties, and  the  property  levied  on  be  that  of  the  sureties,  the 
plaintiff  may,  with  the  consent  of  the  sureties  only,  abandon  the 
levy  and  afterwards  sue  out  an  execution  against  all  the  de- 
fendants. 

If  the  levy  be  abandoned  by  the  sheriff,  with  the  consent  of 
the  defendants,  without  the  concurrence  or  authority  of  the 
plaintiff;  or  if  the  property  be  eloigned  or  removed  by  the  de- 
fendant out  of  the  reach  of  the  sheriff,  without  the  consent  of 
the  sheriff  or  the  plaintiff,  the  latter  may  sue  out  a  new  execu- 
tion. 

But  if  the  property  levied  on  be  lost  to  the  defendant  by  the 
misconduct  or  neglect  of  the  sheriff,  the  execution  is  thereby 
satisfied,  to  the  extent  of  the  value  of  the  property;  and  the 
plaintiff  can  only  look  to  the  sheriff  for  indemnity. 

A  mere  suspension  of  proceedings  on  a  levied  execution  does 
not  authorize  a  restoration  of  the  property  to  the  possession  of 
the  defendant,  or  release  the  levy.  And  if  by  a  misunderstand- 
ing of  the  directions  of  the  plaintiff  by  the  sheriff  and  the  de- 
fendants the  property  is  released  by  the  sheriff  to  them,  the 
plaintiff  may  have  a  new  execution. 

In  a  proceeding  at  law  against  several  parties,  judgments 
against  one  or  more  are  entered  at  one  time,  and  against  others 
at  another  time,  one  execution  may  be  issued  against  all. 

Upon  a  motion  to  quash  a  second  execution  in  vacation,  the 
judge  may,  in  vacation,  allow  the  sheriff  to  amend  his  return  on 
the  first  execution. 

In  the  case  of  O' Bannon  et  als.  vs.  Saunders,  24  Grat.,  138, 
decided  November,  1873,  it  was  held:  When  an  execution  is 
placed  in  the  hands  of  a  sheriff,  the  presumption  of  law  is  that 
he  has  levied  it  and  made  the  money,  and  in  the  absence  of  evi- 
dence that  he  did  not  levy  it,  he  and  his  sureties  will  be  liable 
for  the  debt  to  the  creditor. 

If  the  sheriff  fails  to  levy  the  execution,  when  he  might  do  it, 
he  and  his  sureties  are  liable  for  the  debt. 

Execution  is  issued  in  June,  1860,  and  the  sheriff  does  not 
return  it  until  1868,  after  suit  is  brought  against  him  and  his 
sureties,  when  he  returns  that  he  had  received  the  money  in  1861 
or  1862.     A  law  to  stay  the  levy  of  executions  and  directing 


924  Citations  to  the  Code  op  Virginia. 

that  when  levied  at  the  time  the  sheriff  should  restore  the  pro- 
perty to  the  debtor,  was  passed  in  July,  1861.  The  court  will 
presume  against  the  sheriff  and  his  sureties  that  the  money 
was  received  on  the  first  of  January,  1861. 

In  the  case  of  Paine  {Survivor,  etc.)  vs.  Tutwiler,  et  als.,  27 
Grat.,  440,  decided  March,  1876.  Execution  on  a  forthcoming 
bond  for  $318.53,  in  the  name  of  K.  against  T.,  returnable 
December  rules,  1860,  went  into  the  hands  of  J.,  deputy  of  S., 
sheriff  of  the  county  of  F.  On  January  1,  1861,  J.  becomes 
sheriff  of  F.  In  May,  1861,  J.  receives  from  T.  $176.40  on  this 
execution  and  signs  his  own  name  to  the  receipt  with  the  addi- 
tion of  sheriff,  but  he  does  not  return  the  execution.  In  Feb- 
ruary K.  issues  another  execution  on  the  judgment ;  then  T.  files 
his  bill  to  enjoin  it,  on  the  ground  that  he  had  paid  it,  and  he 
files  J.'s  receipt  for  $176.40.  Neither  T.  nor  J.  can  say  posi- 
tively whether  the  execution  was  or  was  not  levied,  or  whether 
J.  received  the  money,  as  deputy  of  S.,  or  as  sheriff.  Held : 
After  the  great  lapse  of  time  the  court  will  presume  that  the 
execution  was  levied  by  J.  before  the  return-day,  and  that  he 
received  the  money  as  duputy  of  S.,  so  as  to  entitle  T.  to  a 
credit  for  the  amount  paid. 

In  the  case  of  Grandstaff  {late  Sheriff)  et  als.  vs.  Ridgley 
Hampton  <&  Co.,  30  Grat.,  1,  decided  January,  1878.  The  act, 
though  it  gives  to  o^  fieri  facias  the  effect  of  a  continuing  hen, 
after  the  return-day,  upon  all  the  personal  estate  of  the  execu- 
tion debtor,  except  as  therein  stated,  does  not  enlarge  the  pow- 
ers of  the  sheriff  with  respect  to  executions,  and  was  not  so  in- 
tended. It  simply  extends  the  lien  for  the  benefit  of  the  cred- 
itor. 

The  authority  of  an  officer  to  collect  money  in  discharge  of 
an  execution  does  not  result  from  the  lien,  but  is  a  consequence 
of  the  right  to  levy  and  sell  the  debtor's  property  under  the  ex- 
ecution. So  long  as  the  right  to  sell  continues,  the  right  to 
receive  remains,  but  no  longer. 

If  the  officer  levies  before  the  return-day  of  the  writ,  he  may 
sell  after  the  return-day  has  passed;  and,  as  a  necessary  conse- 
quence, he  may  receive  payment  without  selling.  But  if  he 
fails  to  levy  before  the  return-day,  his  authority  to  sell  after- 
wards ceases,  and  with  it  the  right  to  receive  payment  in  dis- 
charge of  the  writ.  He  may  receive  payment  at  any  time  be- 
fore the  return-day  without  a  levy. 

In  the  case  of  Sage  et  als.  vs.  Dickinson  et  als.,  33  Grat.,  361, 
decided  July,  1880.  A  judgment  is  obtained  in  1870  on  a  con- 
tract entered  into  prior  to  the  present  Constitution  of  Virginia, 
and  in  the  same  year  an  execution  issued  thereon  was  placed 
in  the  hands  of  the  deputy-sheriff,  and  was  levied  on  property 
of  the  judgment  debtor,  who  gives  a  forthcoming  bond,  and  has 


Citations  to  the  Code  op  Virginia.  925 

the  property  fortlicoming  on  the  day  and  place  of  the  sale. 
The  debtor  then  claims  the  property  as  exempt  under  the 
homestead  provision  of  the  Constitution  and  the  statute  of  Vir- 
ginia, and  the  deputy -sheriff  releases  the  property  to  him  with- 
out requiring  an  indemnifying  bond  of  the  creditor,  or  even 
notifying  him  of  the  claim  of  homestead  set  up  by  the  debtor. 
In  a  suit  by  the  creditor  against  the  sheriff  and  his  sureties  to 
recover  the  value  of  the  property  lost  by  the  conduct  of  the 
deputy,  held :  The  sheriff  and  his  sureties  are  liable. 

When  an  officer  surrenders  property  he  has  seized  under  an 
execution,  he  does  it  at  his  peril,  and  the  burden  of  establish- 
ing that  it  is  not  liable  to  levy  is  on  him. 

In  the  case  of  BJiea  et  als.  vs.  Preston,,  75  Va.,  758  and  771- 
772,  decided  July  21,  1881.  The  mere  levy  of  an  execution  is 
not  a  satisfaction.  There  must  be  a  sale  or  some  other  act  di- 
vesting the  debtor  of  his  title,  or  depriving  him  of  his  property. 
And  where  the  property  levied  on  is  left  with  the  debtor  and 
the  levy  abandoned,  other  creditors  may  resort  to  it,  if  they  see 
fit,  in  like  manner  as  if  no  execution  had  issued. 

Section  3591. 

The  case  of  Bullitt's  Executors  vs.  Winsto7is,  1  Munf.,  269-284, 
is  quoted  ante,  Section  3587. 

In  the  case  of  Racker  vs.  Uarrison,  6  Munf.,  181,  decided 
October  15,  1818,  it  was  held :  If  a  supersedeas  to  a  judgment, 
execution  being  levied  and  a  forthcoming  bond  taken,  be  issued 
before  the  day  of  sale,  and  thereupon  the  property  be  not  forth- 
coming, the  penalty  of  the  bond  is  saved,  and  no  motion  lies 
upon  it. 

It  seems,  too,  that  if  the  property  taken  in  execution  be  in 
the  sheriff's  hands  at  the  time  of  his  receiving  the  supersedeas, 
or  if  it  be  delivered  to  him  on  the  day  of  sale  after  his  receiving 
siich  writ,  he  ought  to  restore  it  to  the  owner. 

An  amended  return  by  a  sheriff  upon  an  execution,  stating 
that  a  writ  of  supiersedeas  was  issued  on  a  day  specified,  being 
a  day  previous  to  that  appointed  for  the  sale  of  the  property 
taken  in  execution ;  that  he  thinks  the  said  writ  was  delivered 
to  him  on  the  day  of  sale ;  and  that  the  property,  for  which  a 
forthcoming  bond  was  given,  was  not  delivered  at  the  day  and 
place  of  sale,  is  sufficiently  precise  and  certain. 

In  this  case  the  sheriff  was  permitted  by  the  court  to  amend 
his  return  after  a  lapse  of  seven  years  from  its  date. 

In  the  case  of  Smith  and  Richard  vs.  Triplett  &  Neal,  4 
Leigh,  590,  decided  November,  1833.  Upon  a  bond,  assigned 
for  valuable  consideration,  the  assignees  bring  suit  against  the 
obligors,  recover  judgment,  and  sue  out  a  fieri  facias,  which  is 
levied,  and  a  forthcoming  bond  taken,  and,  that  being  returned 


926  Citations  to  the  Code  of  Virginia. 

forfeited,  execution  is  awarded  thereon  against  principal  and 
surety,  and  Siji.fa.  is  sued  out  on  the  forthcoming  bond,  and 
on  this  execution  the  sheriff  returns  "nulla  hona"  as  to  the 
surety,  but  not  as  to  the  principal;  then  the  assignees  bring 
suit  against  the  assignors,  and,  after  trial  and  verdict  for  the 
defendants,  court  allows  the  sheriff  to  amend  his  return,  and  to 
return  "nulla  hona"  as  to  the  principal  in  the  forthcoming  bond, 
and  gives  plaintiff  leave  to  amend  his  declaration,  and  to  count 
on  the  amended  return.  Held :  It  was  right  to  permit  the  sheriff 
so  to  amend  his  return,  and  to  permit  the  plaintiffs  so  to  amend 
their  declaration. 

In  the  action  between  the  assignees  and  assignors  .the  sheriff's 
return  of  "mdla  bona"  on  the  execution  against  the  obligors  in 
the  forthcoming  bond,  though  amended  after  the  assignees'  ac- 
tion, and  five  years  after  the  return,  so  as  to  show  the  insolv- 
ency of  both,  is  conclusive  evidence  of  such  insolvency.  In 
such  case  the  insolvency  of  the  debtors  might  be  proved  by 
other  evidence,  but  the  assignees  have  a  right  to  the  conclusive 
evidence  of  the  sheriff's  return. 

In  the  case  of  Wardsworih  vs.  Miller^  4  Grat.,  99,  decided 
July,  1847,  it  was  held:  A  sheriff  will  be  permitted  to  amend 
his  return  on  an  execution  after  an  action  has  been  commenced 
by  the  plaintiff  in  the  execution  against  the  sheriff  and  his  sure- 
ties on  his  official  bond,  founded  on  said  return. 

In  the  case  of  Stone  vs.  Wilson,  10  Grat.,  529,  decided  Octo- 
ber, 1853,  it  was  held,  pp.  533-'34 :  A  sheriff*  may  have  leave  to 
amend  his  return  upon  an  execution,  after  notice  of  a  motion 
against  him  founded  on  the  original  return ;  and  the  amended 
return  may  be  made  by  a  deputy  who  did  not  make  the  first  re- 
turn. A  second  notice  to  the  sheriff  is  not  necessary  after  the 
amended  return ;  but  the  plaintiff  may  proceed  upon  the  origi- 
nal notice. 

Under  the  act  an  action  of  debt  may  be  maiutained  against  a 
sheriff  for  either  a  wilful  or  negligent  escape.  In  order  to  main- 
tain the  action  it  is  only  necessary  for  the  plaintiff  to  show  the 
escape,  which  may  be  done  by  evidence  aliunde  the  return  on 
the  execution.  And  to  defeat  the  action  the  sheriff  must  show 
that  the  escape  was  tortious,  and  that  fresh  pursuit  was  made. 

For  the  reference  to  25  Grat.,  211,  217-18,  see  ante.  Sec- 
tion 3577. 

In  the  case  of  Hammen  [Sheriff)  et  als.  vs.  Minnick,  32  Grat., 
249,  decided  September,  1879.  A  sheriff  cannot  amend  his  re- 
turn upon  an  execution  after  it  has  been  filed,  except  by  motion 
to  the  court,  upon  notice  to  the  creditor. 

A  deputy-sheriff  returns  upon  an  execution,  "Levied  upon  a 
lot  of  wheat,  &c.,"  setting  out  the  several  species  of  property. 
Upon  debt  by  the  creditor  against  the  sheriff  and  his  sureties 


Citations  to  the  Code  of  Yirginia.  927 

upon  his  official  bond  for  failing  to  make  the  money  on  the  exe- 
cution, they  plead,  "Condition  performed."  Held:  The  de- 
fendants may  prove  by  the  deputy  that  he  had  at  the  time 
other  executions  of  prior  date,  and  taxes  due  the  State  and  the 
county,  all  of  which  had  been  before  levied  on  the  same  pro- 
perty, and  the  whole  proceeds  thereof  were  consumed  in  the 
payment  of  these  executions  and  taxe*;  and  that  the  debtor 
had  no  other  property  unencumbered  out  of  which  the  plain- 
tiif's  execution  could  have  been  made. 

In  the  case  of  Carr  et  ah.  vs.  Mead's  Executrix  et  als.,  11  Va., 
142,  decided  February  8,  1883,  it  was  held,  p.  159-'60  :  Having 
made  return  on  an  execution,  and  on  that  return,  in  part,  a  de- 
cree having  been  entered,  in  subsequent  proceedings  against  him 
and  his  sureties,  the  sheriff  will  not  be  permitted  to  amend  his 
return  so  as  to  explain  it  away  and  enable  his  sureties  to  escape 
liability  for  his  default. 

The  record  in  proceedings  whereby  a  sheriff's  liability  (e.  g., 
on  his  return)  has  been  adjudicated,  is  admissible  as  evidence 
against  his  sureties,  and  is  prima  facie  proof  of  their  liability, 
although  those  sureties  were  not  parties  to  that  record. 

Section  3594. 

In  the  case  of  Harrison  <&  Co.  vs.  Hickman* s  Executors,  1  Call, 
295  (2d  edition,  257),  decided  May  15,  1798,  it  was  held:  No 
distringas  lies  against  the  executors  of  the  old  sheriff  to  oblige 
them  to  sell  property  taken  by  him  in  his  lifetime  under  a  writ 
of  Jieri  facias. 

Section  3596. 

In  the  case  of  Wilson  vs.  Stokes  <&  Betts,  4  Munf.,  455,  de- 
cided October,  1815,  it  was  held  :  It  seems  that  since  the  attor- 
ncy-at-law  who  prosecutes  a  suit  and  obtains  judgment  has  full 
power  to  receive  the  money  recovered  when  levied  by  execution, 
a  demand  made  by  him  of  the  sheriff  by  whom  it  is  levied  is 
sufficient  to  authorize  a  motion  against  such  sheriff  for  non- 
payment. 

in  the  case  of  Chapman  vs.  Cheves^  9  Leigh,  297,  decided 
March,  1838,  it  was  held:  Where  an  execution  is  delivered  to  a 
sheriff  of  a  county  other  than  that  in  which  the  creditor  resides, 
and  the  creditor  employs  an  attomey-at-law  practicing  in  the 
sheriff's  county  to  collect  the  money,  without,  however,  giving  the 
attorney  a  written  order,  and  then  the  attorney  makea  a  demand 
of  the  money  from  the  sheriff,  such  demand,  if  no  objection  be 
made  at  the  time  to  the  authority  of  the  attorney  to  receive  the 
money,  is,  notwithstanding  the  statute,  a  sufficient  demand  to 
justify  a  judgment  against  the  sheriff. 

In  the  case  of  Ballard  vs.  Thomas  cfe  Ammon,  19  Grat.,  14, 
decided  November  14,  1868,  it  was  held,  p.  25 :  A  county  credi- 


928  Citations  to  the  Code  of  Virginia. 

tor  provided  for  in  the  county  levy  is  not  bound  to  apply  to  the 
sheriff  or  his  deputies  for  payment  before  he  proceeds  to  en- 
force payment  of  his  debt  by  the  sheriff  and  his  sureties.  Page 
25,  the  court  said  "  this  statute  is  confined  to  money  made  under 
execution." 

In  the  case  of  C Bannon  et  als.  vs.  Saunders,  24  Grat.,  138,  de- 
cided November,  187^  it  was  held,  pp.  144-45:  Proof  that 
money  collected  on  an  execution  by  counsel  for  plaintiff  within 
the  county  is  sufficient  to  repel  an  excuse  based  on  the  fact  of 
the  plaintiff's  non-residence. 

In  the  case  of  Orandst<tff  {late  Sheriff)  et  als.  vs.  Ridgley^ 
Hainjpton  (Ss  Co.,  30  Grat.,  1,  decided  January  1878,  it  was  held, 
pp.  14,  15 :  In  an  action  by  an  execution-creditor  against  the 
sheriff '  and  his  sureties  upon  his  official  bond  for  the  failure  to 
pay  over  the  money  he  had  collected  on  the  execution  which 
had  gone  into  the  hands  of  one  of  his  deputies,  the  declaration 
not  stating  that  the  plaintiff  did  not  reside  in  the  county  of  the 
sheriff,  it  is  not  necessary  to  aver  that  a  demand  had  been  made 
upon  the  sheriff  as  prescribed  by  the  statute  before  the  action 
was  instituted. 

If  it  appears  upon  the  trial  that  the  plaintiff  in  the  execution 
did  not  reside  in  the  same  county  with  the  sheriff,  then,  unless 
the  plaintiff  proves  that  such  demand  was  made  on  the  sheriff,, 
his  action  must  fail. 

Section  3597. 

In  the  case  of  Eckhols  vs.  Grahain,  et  als.,  1  Call,  492  (2d  edi- 
tion, 428),  decided  April  30,  1799,  it  was  held:  If  plaintiff  sues 
a  second  execution  before  the  property  taken  under  the  first  is 
disposed  of,  he  waives  the  first,  and  destroys  the  lien  on  the 
property  taken  under  the  first. 

In  the  case  of  Coleman  vs.  Cocke,  6  Rand.,  618,  decided  De- 
cember, 1828,  it  was  held :  According  to  the  equitable  and  cor- 
rect construction  of  our  statute  concerniug  executions,  if  a 
creditor  by  judgment  or  decree  sues  oiit  a  fi.fa.  which  is  levied 
and  returned  satisfied  in  part  only,  he  may  take  out  another 
kind  of  execution  (as  the  elegit)  without  pursuing  the  fi.  fa.  to 
return  of  nihil. 

In  the  case  of  Windrum  vs.  Parker,  2  Leigh,  361,  decided  Oc- 
tober, 1830,  it  was  held:  The  statute  of  executions  authorizes  a 
party  who  has  sued  out  one  execution  to  sue  out  other  execu- 
tions if  the  first  be  not  returned  and  be  not  executed;  if  the  first 
be  executed  though  not  returned,  the  party  is  not  entitled  to  sue 
out  any  other  execution. 

For  the  reference  to  81  Va.,  329,  see  Sutton  vs.  Mayre  {Audi- 
tor), ante,  Section  3577. 


Citations  to  the  Code  of  Vibginia.  929 

Section  3599. 

In  the  case  of  Hendricks  et  als.  vs.  Dundas,  2  Wash.,  63  (1st 
edition,  50),  decided  at  April  term,  1795,  it  was  held:  Every 
court  has  power  to  watch  over  the  execution  of  its  process,  and 
when  it  has  been  irregularly  or  fraudulently  executed,  to  quash  it. 
If  the  commissioners  who  take  a  replevy  bond  act  improperly, 
the  court  will,  on  motion,  quash  the  bond. 

In  the  case  of  Fergueson  et  als.  vs.  Moore,  2  Wash.,  68  (1st 
edition,  54),  decided  at  April  term,  1795,  it  was  held:  A  bond 
taken  upon  replevying  property  distrained  for  rent  must  be  re- 
turned to  the  court  to  which  the  ofl&cer  levying  the  distress  be- 
longs, or  to  the  court  of  that  county  in  which  the  land  lies. 
Property  distrained  for  rent  can  be  sold  only  by  an  officer  duly 
qualified  as  such  as  by  a  sheriflf  or  constable. 

In  the  case  of  Burwell  vs.  Anderson,  2  Wash.,  249  (1st  edi- 
tion, 194),  decided  at  April  term,  1796,  it  was  held :  A  super- 
sedeas will  not  lie  where  an  execution  was  improperly  issued 
upon  a  twelve  months  replevin  bond.  The  injured  party  may 
move  to  quash  the  execution,  and  the  judgment  on  that  motion, 
if  erroneous,  may  be  corrected  on  an  appeal  or  supersedeas. 

In  the  case  of  The  Commonwealth  vs.  Hewitt,  2  H.  &  M.,  181, 
decided  March  24, 1808,  it  Avas  held :  A  party  may,  without  any 
previous  notice,  move  the  court  to  direct  an  execution  to  be 
issued  (where  the  clerk  refuses  to  issue  one)  or  to  quash  an  exe- 
cution, and  it  will  be  so  far  considered  a  cause  depending  that 
either  party  may  appeal  from  the  decision  of  the  court  on  such 
motion. 

In  the  case  of  Moss  vs.  Moss's  Executors,  4  H.  &  Mi,  293,  de- 
cided October,  1809,  it  was  held :  If  the  clerk  of  an  inferior 
court  misconceive  a  judgment  and  issue  execution  against  any 
persons  not  properly  a  party  thereto,  the  remedy  is  not  by 
supersedeas  or  writ  of  error,  but  by  motion  to  quash  the  execu- 
tion, and  if  such  motion  be  overruled  an  appeal  may  be  taken 
to  the  court  of  error,  or  an  application  may  be  made  for  a  writ 
of  error  or  supersedeas  to  the  order  overruling  such  motion. 

The  case  of  BullitCs  Executors  vs.  Winston's,  1  Munf.,  269-'84, 
is  quoted  ante.  Section  3587. 

In  the  case  of  Hamilton  vs.  Shrewsbury,  4  Rand.,  427,  de- 
cided August,  1826,  it  was  held,  p.  431:  If  the  execution  is 
valid  so  far  as  to  bind  the  property,  but  the  sale  under  it  is 
void,  on  account  of  the  interest  or  improper  conduct  of  the 
sheriff,  the  court  from  which  the  execution  issued  may  correct 
the  abuse  of  its  own  process  by  quashing  the  execution,  etc., 
and  there  is  no  ground  for  equity  to  interfere. 

In  the  case  of  Smock  vs.  Dade,  5  Rand.,  639,  decided  by  the 
General  Court,  November,  1826,  it  was  held:  If,  on  a  motion 
(to  quash  an  execution,  or  enter  a  judgment  satisfied),  the  re- 

59 


930  Citations  to  the  Code  of  Vieginia. 

lief  of  the  party  depends  on  matters  of  fact,  the  court  has  a  dis- 
cretion to  direct  a  jury  to  try  the  facts. 

In  the  case  of  Crawford  vs.  2'hurmond  et  als.,  3  Leigh,  85, 
decided  October,  1831.  A.  recovers  a  judgment  against  B.,  and 
C,  who  had  prosecuted  the  suit  to  judgment  as  A.'s  agent,  sues 
out  a  fi.  fa.  upon  it,  and  endorses  on  the  execution  that  it  is 
partly  for  his,  C.'s,  own  benefit;  before  this  execution  is  de- 
livered to  the  sheriff,  B.,  the  debtor,  makes  a  satisfaction  to  A. 
of  the  full  amoupt  of  the  debt,  and  A.  gives  him  a  receipt  in  full 
and  discharge.  Held :  Though  B.,  the  debtor,  might  have  made 
a  motion  to  quash  the  execution,  and  thus  had  remedy  at  law, 
yet  a  court  of  equity  has  jurisdiction  to  give  him  relief  by  way 
of  injunction  to  inhibit  further  proceedings  on  the  execution. 

In  the  case  of  ShackUford  vs.  Apperson^  6  Grat.,  451,  de- 
cided October,  1849.  In  a  suit  to  subject  land  for  the  payment 
of  the  purchase-money  there  is  a  decree  against  the  defendant 
for  a  sum  certain;  and  if  he  shall  fail  to  pay  it  within  thirty 
days,  a  commissioner  is  directed  to  sell  the  land  upon  terms 
prescribed  in  the  decree.  Held :  The  clerk  has  no  authority  to 
issue  an  execution  on  this  decree  without  an  order  of  the  court 
or  of  the  judge  in  vacation. 

Though  circumstances  may  exist  which  will  warrant  the  court, 
or  a  judge  in  vacation,  to  allow  process  of  execution  in  such  an 
interlocutory  decree,  these  circumstances  must  be  shown,  and 
if  not  shown,  it  is  improper  to  allow  it. 

If  an  execution  is  issued  by  the  clerk  without  an  order  of  the 
court,  or  the  judge  in  vacation,  the  court  may  quash  the  execu- 
tion in  t^m,  or  the  judge  in  vacation  may  restrain  proceedings 
upon  it  by  an  injunction  order. 

In  the  case  of  Shumaker  vs.  Nichols,  6  Grat.,  592,  decided 
January,  1850,  it  was  held :  A  tender  of  money  in  payment  of  a 
judgment  will  not  authorize  the  quashing  of  an  execution  issued 
thereon,  unless  the  tender  is  followed  by  the  payment  of  the 
money  into  the  court,  and  a  motion  to  enter  satisfaction  on  the 
record. 

A  tender  of  money  in  payment  of  a  judgment  will  not  au- 
thorize a  court  of  equity  to  stop  the  execution,  where  there  is 
neither  allegation  or  proof  that  the  defendant  in  execution  kept 
the  money  on  hand  for  the  discharge  of  the  judgment. 

In  the  case  of  "Morrison  vs.  Speer,  10  Grat.,  228,  decided  July, 
1853,  it  was  held :  A  party  claiming  that  he  has  not  been  cred- 
ited for  all  the  money  paid  by  him  to  the  sheriff  on  an  execu- 
tion, may  have  any  injustice  done  to  him  in  that  respect  cor- 
rected by  the  court  from  whence  the  execution  issued ;  and  it  is 
not  a  case  for  an  injunction  and  relief  in  equity. 

In  the  case  of  Beckley  vs.  Palmer  et  al.,  11  Grat.,  625,  decid- 
ed July,  1854,  it  was  held :  Where  the  debtor  in  an  execution 


Citations  to  the  Code  op  Virginia.  981 

objects  that  a  previous  execution  has  been  levied  by  the  sheriff 
upon  sufficient  property  to  satisfy  the  judgment,  and  that  he 
has  improperly  misapplied  the  proceeds  of  the  sale  of  the  pro- 
perty, or  if  he  insists  that  payment  has  been  made  to  the  sheriff 
which  has  not  been  credited  on  the  execution,  if  he  has  an  op- 
portunity to  apply  to  the  court  of  law  from  which  the  execution 
issued  for  redress,  he  has  no  right  to  come  into  equity  for  relief. 

In  the  case  of  Coleman's  Administrators  vs.  Anderson,  29 
Grat.,  425,  everything  relating  to  this  section  is  a  mere  quoere^ 
and  is  of  no  effect. 

In  the  case  of  Snaveley  et  als.  vs.  Ilarkrader  et  als.  30  Grat., 
487,  decided  July,  1878.  In  a  suit  by  infants  who  have  re- 
moved out  of  the  State,  by  their  next  friend,  against  their  Vir- 
ginia guardian,  they  ask  that  their  property  may  be  transferred 
to  their  foreign  guardian,  and  the  court  decrees  that  the  amount 
ascertained  to  be  due  from  the  Virginia  guardian  to  the  several 
plaintiffs  shall  be  paid  to  the  foreign  guardian,  and  that  he  may 
sue  out  execution  upon  the  decree.  Upon  appeal,  so  much  of 
the  decree  as  directs  the  payment  to  the  foreign  guardian  is  re- 
versed, and  he  is  directed  to  proceed  according  to  the  statute 
to  have  the  infants'  estate  removed ;  and  when  that  is  done,  the 
circuit  court  may  decree  that  the  said  several  sums  shall  be  paid 
over  to  him.  Without  any  further  proceeding,  several  execu- 
tions are  sued  out  in  the  name  of  the  infants  for  the  amounts 
due  respectively,  the  executions  being  made  returnable  in  less 
than  four  weeks;  and  the  Virginia  guardian  enjoins  the  execu- 
tions. Held:  Although,  under  the  statute,  the  defendants  in 
the  executions  might  have  asked  the  court,  or  the  judge  in  va- 
cation, to  quash  them,  as  this  must  be  done  upon  notice  to  the 
plaintiffs,  and  could  only  have  been  done  by  publication  as  to 
these  foreign  plaintiffs,  under  the  circumstances  the  defendants 
were  entitled  to  enjoin  the  executions. 

For  the  reference  to  81  Va.,  329,  see  the  case  of  Sutton  vs. 
Marye  {Auditor),  ante,  Section  3577. 

Section  3600. 

In  the  case  of  Enders's  Executors  vs.  Burch,  15  Grat.,  64,  de- 
cided January,  1859,  it  was  held :  When  a  court  authorizes  exe- 
cutions to  issue  upon  judgments  recovered  during  the  term,  the 
judgments  become  final  from  the  time  when  execution  may  issue, 
and  (tannot  afterwards  be  set  aside  by  the  court. 

In  the  case  of  James  River  and  Kanawha  Company  vs.  Lee, 
16  Grat.,  424,  decided  November  23,  1863,  it  wa^  held,  p.  433: 
An  office-judgment  in  an  action  of  ejectment  does  not  become 
final  without  the  intervention  of  a  court  or  a  jury,  but  there 
ought  in  every  such  case  to  be  an  order  for  an  inquiry  of  dam- 
ages. 


932  Citations  to  the  Code  of  Virginia. 

CHAPTER  CLXXYI. 

Section  3601. 

In  the  case  of  Puryear  vs.  Taylor,  12  Grat.,  401,  decided 
May  18,  1855,  it  was  held:  A  fieri  f aclasis  a  lien  from  the  time 
it  goes  into  the  hands  of  the  officer  to  be  executed  upon  all  the 
personal  estate  of  the  debtor,  including  debts  due  to  him,  with 
the  exception  stated  in  the  statute,  and  this  lien  continues  after 
the  return-day  of  the  execution,  and  only  ceases  when  the  right 
to  levy  the  execution,  or  to  levy  a  new  execution  upon  the  judg- 
ment, ceases,  or  is  suspended  by  a  forthcoming  bond  being  given 
and  forfeited,  or  by  a  mipersedeas  or  other  legal  process. 

A  lien  of  a  fieri  facias  of  prior  date  has  priority  over  an  at- 
tachment of  subsequent  date. 

In  the  case  of  Evans  {Trustee)  vs.  Greenhow  et  als.,  15  Grat., 
153,  decided  April,  1859,  it  was  held:  The  trustee  and  bene- 
ficiaries of  a  deed  to  secure  hona  fide  debts  without  notice  are 
purchasers  for  valuable  consideration,  within  the  meaning  of 
the  exception  in  the  statute,  and  will  be  preferred  to  an  execu- 
tion-creditor of  the  grantor  in  the  deed  as  to  a  chose  in  action 
thereby  conveyed. 

In  the  case  of  Charron  &  Co.  vs.  Boswell  et  als.,  18  Grat., 
216,  decided  January,  1868,  it  was  held :  A  fieri  facias  placed 
in  the  hands  of  an  officer  for  execution  is  a  legal  lien  upon  all  the 
personal  property  and  choses  in  action  of  the  debtor,  from  the 
time  it  goes  into  the  hands  of  an  officer,  except  in  the  cases 
stated  in  said  section.  This  lien  continues  after  the  return  of 
the  execution  "no  effects,"  and  his  priority  over  a  subsequent 
execution  lien  under  the  same  law,  even  though  there  has  been 
a  proceeding  by  suggestion  under  the  junior  sooner  than  under 
the  senior  execution;  and  this  though  the  executions  issued 
from  different  courts. 

In  the  case  of  Trevillian^s  Executors  vs.  GuerranCs  Executors, 
31  Grat.,  525,  decided  February  13,  1879,  it  was  held:  The  lien 
of  an  execution  oi  fieri  facias  upon  the  debtor's  choses  in  action, 
though  not  enforced  in  his  lifetime,  continues  after  his  death 
as  against  the  other  creditors  of  the  debtor. 

In  the  case  of  Frayser^ s  Administrator  vs.  B.  &  A.  R.  R.  Co. 
et  als.,  81  Va.,  388,  decided  January  28,  1886.  Eailroad  is  under 
trust  to  pay  certain  debts.  At  suit  of  trust  creditors,  receiver 
is  appointed  and  ordered,  after  executing  required  bond,  to  take 
possession  and  carry  on  the  railroad.  Between  such  appoint- 
ment and  the  execution  of  said  bond,  a^fi.  fa.  against  the  rail- 
road company  is  placed  in  the  sheriff's  hands;  and  there  are 
funds  in  bank  to  the  credit  of  the  suit,  representing  the  earnings, 
etc.,  of  the  road.  Held  :  Thefi.fa.  creditor  is  entitled  to  have 
those  funds  applied  to  satisfy  his  debt  in  preference  to  the  trust 
creditor. 


cttations  to  the  code  of  vieginia.  933 

Section  3602. 
See  the  cases  cited  supra,  Section  3601. 

Section  3608. 

In  the  case  of  Shii^ley  vs.  Long,  6  Rand.,  735,  decided  by  two 
judges  only,  August,  1827,  it  was  held :  When  a  debtor  takes 
the  insolvent  oath,  and  delivers  in  a  schedule,  the  sheriff  is 
vested  by  the  act  of  assembly  with  all  the  insolvent's  estate, 
rights  and  interests,  whether  they  are  named  in  the  schedule  or 
not,  and  whether  the  property  be  in  the  possession  of  the  debtor 
or  in  that  of  some  other  person.  The  clause  of  the  act,  "for 
such  interest  therein  as  such  prisoner  hath,  and  may  lawfully 
part  withall,"  is  borrowed  from  the  English  statutes  of  bank- 
ruptcy, and  has  been  used  in  all  of  our  statutes  of  bankruptcy 
from  1726  to  1748,  inclusive,  as  applying  to  partial  interests  in 
real  estate,  such  as  fees-tail,  life  estates,  estates  for  years,  re- 
mainders, reversions,  etc.,  and  not  to  personal  estate.  It  is  still 
to  be  so  understood  in  the  act  of  1769,  and  in  the  revised  laws 
of  1792  and  1819,  and  is  not  to  be  taken  as  a  restriction  on 
the  vesting  in  the  sheriff  of  the  whole  of  the  debtor's  chattels, 
whether  he  may  part  with  or  deliver  possession  of  them  or  not. 

Therefore,  if  an  insolvent  debtor,  having  made  a  fraudulent 
gift  of  a  slave  to  a  child,  still  retaining  possession  thereof  in  his 
schedule,  disclaims  all  title  to  said  slave,  the  law  vests  in  the 
sheriff  the  legal  title  to  the  slave,  the  gift  being  void,  and  he 
may  recover  it  in  a  court  of  law  from  the  debtor.  The  sheriff 
has  the  right  to  sell  and  pass  by  deed  a  slave  or  other  chattel 
which  the  insolvent  debtor  has  made  a  fraudulent  gift  of  to  his 
child  (but  of  which  he  retains  the  possession),  and  the  purchaser, 
under  such  sale,  may  recover  the  slave  or  other  chattel,  although 
the  sheriff  had  not  possession  of  it  at  any  time. 

If  the  property  so  fraudulently  given  be  not  in  the  possession 
of  the  insolvent  debtor,  but  of  some  other  person,  although  the 
title  vest  in  the  sheriff,  it  seems  that  he  cannot  sell  the  property 
in  such  case,  but  must  proceed  by  summons  against  the  person 
holding  it. 

But  even  if  the  act  were  violated  by  selling  the  chattels  of  the 
insolvent  before  they  came  into  the  possession  of  the  sheriff,  yet, 
as  the  legal  title  is  vested  in  him,  if  he  does  sell,  the  sale  is  not 
void,  and  the  purchaser  may  recover.  The  sheriff  is  a  trustee 
for  the  creditors,  and  for  a  violation  of  his  trust  he  may  be  re- 
sponsible, but  that  does  not  prevent  the  legal  title  passing  to 
the  purchaser. 

A  deed  from  a  sheriff,  which  conveys  all  "  the  right,  title,  and 
interest  vested  in  the  sheriff  by  law,  in  and  to  eight  negroes 
conveyed  by  a  debtor  to  his  children,"  without  naming  the 
negroes,  is  sufficiently  descriptive  to  pass  them.     The  identity 


934  Citations  to  the  Code  of  Vibginia. 

of  the  negroes  is  matter  of  proof,  and  as  soon  as  they  are  iden- 
tified the  deed  operates  on  them. 

Section  3609. 

In  the  case  of  Dillard  vs.  Thornton,  29  Grat.,  392,  decided 
November  22,  1877,  it  was  held,  p.  398:  Where,  under  a  de- 
fective judgment,  a  fi.  fa.  is  issued,  and  there  is  a  proceeding 
by  suggestion  against  the  persons  indebted  to  the  defendant, 
such  defendant  may,  upon  proper  notice,  appear  in  such  pro- 
ceeding and  have  the  judgment  vacated  and  all  proceedings 
thereunder  quashed. 

A  notice  to  reverse  or  correct  a  judgment  by  default,  or  to 
quash  an  execution,  need  not  be  in  writing.  All  that  is  requisite 
is,  that  there  should  be  reasonable  notice.  It  is  too  late  to  make 
the  objection  in  the  appellate  court  that  the  notice  was  insuffi- 
cient, when  the  parties  appeared  and  made  no  such  objection 
in  the  court  below. 

Section  3610. 

In  the  case  of  The  Balthnore  c&  Ohio  Railroad  Company  vs. 
Gallahue's  Administrators,  12  Grat.,  655,  decided  September  11, 
1855,  it  was  held :  When  a  corporation  is  proceeded  against  as 
a  garnishee,  its  answer  is  to  be  received  in  the  only  mode  in 
which  a  corporation  can  answer,  under  its  corporate  seal. 

In  the  case  of  BicJcle  et  als.  vs.  Christman's  Adm,inistratrix, 
76  Va.,  678  and  690-'93,  decided  September  28,  1882.  Judg- 
ment-creditor garnisheed  decedent's  administratrix  and  got 
judgment  by  default  de  bonis  testatoris.  Decedent  had  owed  a 
debt  to  the  debtor  of  the  judment-creditor,  but  that  debtor  had 
assigned  it  to  B.,  who  sued  and  got  a  judgment  against  the  ad- 
ministratrix de  bonis  testatoris.  Held:  The  judgment  did  not 
bind  administratrix  personally,  because  it  was  de  bonis  testatoris. 
It  did  not  bind  the  decedent's  estate  in  her  hands,  because  it  is 
well  settled  that  process  of  garnishment  at  law  will  not  lie 
against  personal  representatives. 

Section  3614. 

See  the  case  of  Shirley  vs.  Long,  6  Rand.,  735,  cited  ante. 
Section  3608. 

In  the  case  of  Clough  vs.  Thompson,  7  Grat.,  26,  decided  May 
4, 1850,  it  was  held:  Upon  taking  the  oath  of  insolvency,  all  the 
property  and  rights  of  the  insolvent  debtor  are  vested  in  the 
sheriff,  who,  as  representative  of  the  creditor,  is  entitled  to  assert 
the  legal  and  equitable  rights  of  the  creditor  and  to  set  aside 
fraudulent  conveyances  of  the  insolvent  debtor,  and  recover  the 
property  for  the  benefit  of  the  creditor. 

In  the  case  of  Staton  vs.  Pittman  {Sheriff)^  11  Grat.,  99,_ 
decided  April,  1854.     Judgments  had  been  recovered  against 


Citations  to  the  Code  op  Virginia.  935 

N.,  and  executions  sued  out  thereon  had  been  returned  "no 
eflfects."  In  this  state  of  things,  slaves  sold  at  public  auction 
on  a  credit  were  cried  out  to  N.,  and  he  induced  T.  to  take  them 
and  give  his  bond  for  the  price,  upon  the  understanding  that  N. 
would  afterwards  take  thera  and  pay  T.  the  price,  and  he  told  T. 
he  was  indebted  to  his  sister,  R.,  for  washing,  mending,  etc., 
and  owed  her  a  gi*eat  deal  of  money,  and  he  wished  to  give  the 
slaves  to  her  as  a  compensation  for  what  he  owed  her.  T.  kept 
the  slaves  about  three  months,  and  then  N.  paid  T.  the  price  of 
the  slaves,  and  T.  gave  N.  a  receipt  in  the  name  of  R.,  and  a 
a  day  or  two  afterwards  T.  sent  the  slaves  to  the  house  of  B., 
the  father  of  R.,  where  R.  then  lived,  she  being  about  fourteen 
years  old,  and  the  slaves  and  R.  both  remained  there,  she  claim- 
ing them  as  hers,  but  it  not  appearing  that  B.  set  up  any  claim 
to  them. 

Whilst  the  slaves  were  yet  at  the  house  of  B.  the  sheriff  tried 
to  levy  upon  them  as  the  property  of  N.,  but  when  he  came  in 
sight  the  doors  of  the  servants'  houses  were  shut.  Afterwards 
N.  was  taken  on  a  ca.  sa.  and  took  the  insolvent  debtor's  oath, 
and  then  the  sheriff  brought  separate  actions  of  detinue  against 
B.  and  R.  to  recover  the  slaves.  Held :  The  arrangement  by  N. 
was  fraudulent  as  to  his  creditors. 

Though  N.  never  had  possession  of  the  slaves,  yet  as  he  paid 
the  purchase-money  to  T.  they  became  the  property  of  N.  upon 
which  his  creditors  would  have  been  entitled  to  levy  their  exe- 
cutions, and  the  subsequent  transfer  of  the  possession  to  R. 
without  consideration,  and  upon  a  fraudulent  arrangement  be- 
tween N.  and  R.,  did  not  bar  the  action  of  the  sheriff  for  the  slaves. 

CHAPTER  CLXXVIL 

In  the  case  of  Wood  vs.  Davis,  1  Wash.,  69,  decided  at  the 
fall  term  of  1791,  it  was  held  :  It  is  not  necessary  that  the  time 
appointed  for  the  delivery  of  the  property  should  be  stated  as 
that  at  which  the  sale  is  to  take  place. 

In  the  case  of  Irvin,  Gait  <&  Co.  vs.  Eldridge  c&  Brackenridge^ 
1  Wash.,  161,  decided  at  the  spring  term,  1793.  The  case  of 
Wood  vs.  Davis,  supra,  was  affirmed ;  the  same  point  was  the 
only  one  in  issue. 

In  the  case  of  Smith  c&  Moreton  vs.  Wallace,  1  Wash.,  254, 
decided  at  the  spring  term,  1794.  The  clerk  refused  to  accept  a 
bail-piece,  because  it  did  not  mention  the  name  of  a  defendant 
on  whom  the  writ  had  not  been  served.  Held:  The  bail-piece 
was  good,  and  should  have  been  accepted. 

In  the  case  of  Iluhhard  vs.  Taylor,  1  Wash.,  259,  decided  at 
the  spring  term,  1794,  it  was  held :  The  condition  must  show 
against  whom  execution  was  issued,  and  whose  property  was 
taken  in  execution. 


936  Citations  to  the  Code  of  Vieginia. 

In  the  case  of  Worrsham  vs.  Eggleston,  1  Call,  48  (2d  edition, 
41),  decided  October  16,  1797,  it  was  held :  If,  before  the  act  of 
1794,  the  sheriff,  in  taking  a  forthcoming  bond,  included  his 
commissions  on  the  debt,  it  was  erroneous ;  but  in  such  a  case 
the  bond  is  not  void,  and  the  judgment  shall  be  entered  for 
the  sum  due  without  the  commissions. 

In  the  case  of  Wilkinson  vs.  McLochlin  <&  Co.,  1  Call,  49  (2d 
edition,  42),  decided  November  17,  1797,  it  was  held:  If  in  a 
forthcoming  bond  the  teneri  be  right,  though  the  solvendum  be 
wrong,  it  will  not  vitiate ;  the  bond  is  good. 

In  the  case  of  Winston  vs.  77ie  Comrnonwealth,  2  Call,  290 
(2d  edition,  246),  decided  April  30,  1800,  it  was  held  :  One 
forthcoming  bond  may  be  taken  on  several  executions.  Two 
separate  bonds  may  be  included  in  one  instrument. 

In  the  case  of  Bartley  vs.  Yates,  2  H.  &  M.,  398,  decided  May 
2, 1808,  it  was  held :  Though  there  be  a  total  blank  for  the  name 
of  the  surety  in  the  obligation  part  of  a  forthcoming  bond,  yet 
his  name  being  mentioned  in  the  recital  of  the  condition,  and 
he  having  signed  and  sealed  it,  was  hel4  sufficient  to  charge  him. 

A  blank  being  left  in  the  condition  of  a  forthcoming  bond  for 
the  name  of  the  high  sheriff,  to  whom  the  property  was  to  be 
delivered  at  the  time  and  place  of  sale,  was  held  not  to  vitiate 
it,  the  name  of  the  high  sheriff  having  been  mentioned  in  a  for- 
mer part  of  the  condition. 

In  the  case  of  Glascock' s  Administrators  vs.  Dawson,  1  Munf., 
605,  decided  May  23,  1810.  A  writ  of  -fieri  facias  against  an 
administratrix,  "  to  be  levied,  as  to  certain  damages  and  costs, 
of  the  goods  and  chattels  of  her  intestate,  and,  as  to  other  dam- 
ages and  costs,  of  her  own  goods  and  chattels,"  was  returned 
"  executed  on  certain  slaves,  the  property  of  the  administratrix, 
and  a  forthcoming  bond  taken,"  etc.  The  forthcoming  bond, 
being  given  by  the  administratrix  eo  nomine,  but  expressing  that 
the  /?.  fa,  was  against  the  goods  and  chattels  of  the  said  admin- 
istratrix, was  decided  to  be  variant  from  the  fl.  fa,,  and,  there-. 
fore,  was  quashed. 

In  reviewing  a  judgment  by  default  on  a  forthcoming  bond, 
the  appellate  court  will  compare  it  with  the  execution  on  which 
it  was  taken. 

In  the  case  of  Bronaughs  vs.  Freeman's  Executor,  2  Munf., 
266,  decided  May  2,  1811,  it  was  held:  A  forthcoming  bond 
mentioning  the  persons  against  whom  the  execution  issued,  and 
"they  were  desirous  of  keeping  in  their  possession  until  the 
day  of  sale  the  property  taken  by  the  sheriff,"  sufficiently  de- 
scribes it  as  their  property. 

Where  a  judgment  upon  a  forthcoming  bond  is  obtained 
against  a  defendant  having  legal  notice  and  appearing  by  at- 
torney, but  not  moving  to  quash  the  bond,  nor  stating  by  plea 


CrrATiONS  TO  the  Code  of  Vieginia.  937 

or  bill  of  exceptions  any  variance  between  it  and  the  execution, 
the  appellate  court  is  not  to  reverse  the  judgment  on  the  ground 
of  such  variance. 

The  sheriff's  fee  for  taking  the  forthcoming  bond  may  be  in- 
cluded in  it. 

In  the  case  of  Beale  vs.  Wilson  et  ah.,  4  Munf.,  380,  decided 
March  20,  1815,  it  was  held:  A  forthcoming  bond  appearing 
in  other  respects  to  be  in  proper  form  ought  not  to  be  quashed 
on  the  ground  that  in  the  obligatory  or  penal  part  thereof  a 
blank  is  left  for  the  names  of  the  obligors. 

A  forthcoming  bond  being  inserted  in  the  transcript  of  the 
record  is  to  be  taken  as  the  forthcoming  bond  on  which  the 
court  gave  judgment,  without  any  certificate  by  the  clerk  to 
that  effect. 

If  a  judgment  quashing  a  forthcoming  bond  be  reversed,  the 
appellate  court  will  not  proceed  to  give  judgment  for  the  plain- 
tiff, unless  it  regularly  appear  that  the  defendants  had  legal 
notice  of  the  motion,  or  appeared  to  oppose  it.  If,  therefore, 
there  be  no  bill  of  exceptions  making  the  notice  stated  in  the 
record  a  part  thereof,  and  it  does  not  appear  by  the  judgment 
itself  that  the  defendants  had  legal  notice,  or  appeared  in  the 
court  below,  the  cause  should  be  sent  back  to  give  the  plaintiff 
an  opportunity  to  prove  his  notice,  and  the  defendants  to  make 
any  defence  thereto  which  their  case  may  admit  of  according 
to  law. 

In  the  case  of  Harpers  et  al.  vs.  Patton,  1  Leigh,  306,  de- 
cided June,  1829,  it  was  held:  Fi.  fa.  against  three,  A.,  T.  and 
H.  Forthcoming  bond  taken,  the  condition  whereof  does  not 
distinctly  state  to  which  of  the  three  defendants  the  property 
taken  in  execution  belonged,  and  omits  to  state  that  it  was  re- 
stored to  the  debtor.     Held  :  The  bond  is  good. 

Judgment  on  forthcoming  bond,  instead  of  awarding  exe- 
cution thereon,  is,  that  plaintiff  recover  the  debt  against  de- 
fendants.    Held :  Irregular  iu  form,  yet  well  in  substance. 

For  reference  to  1  Leigh,  442,  see  Meze  vs.  Sower,  cited  ante, 
Section  3583. 

For  reference  to  3  Leigh,  392,  see  Turnbull  vs.  Claihorney  ante, 
Section  3587. 

In  the  case  of  Douglass  vs.  Fagg,  8  Leigh,  588,  decided  July, 
1837.  M.  sells  lands  to  F.,  who  gives  two  bonds  for  the  pur- 
chase-money. D.,  for  whose  benefit  the  purchase  is  made,  pays 
off  the  first  bond  and  part  of  the  second.  The  balance  he  de- 
livers to  F.  to  be  paid  to  M.,  but  it  is  not  paid  over,  and  suit  is 
brought  for  the  same  on  the  second  bond  against  F.  Judg- 
ment being  rendered,  F.  gives  a  forthcoming  bond  with  surety, 
which  is  forfeited,  and  afterwards  obtains  an  injunction  upon 
giving  bond  with  surety  to  pay  the  amount  of  the  judgment  in 


938  Citations  to  the  Code  of  Virginia, 

case  the  injunction  shall  be  dissolved.  The  injunction  is  after- 
wards dissolved,  and  judgment  rendered  against  the  surety  in 
the  injunction  bond,  which  he  satisfies.  Then  the  surety  claims 
for  this  money  paid  him  in  satisfaction  of  the  vendor's  claim, 
that  the  vendor  had  a  lien  upon  the  land,  and  files  a  bill  to  be  sub- 
stituted in  the  place  of  the  vendor  and  have  the  benefit  of  the 
lien.  Held :  The  claim  to  substitution  cannot  be  sustained,  and 
the  bill  must  therefore  be  dismissed. 

In  the  case  of  Hairston  vs.  WoodSy  9  Leigh,  308,  decided 
March,  1838.  By  a  fieri  facias  the  sheriff  is  commanded  to 
cause  principal,  interest,  and  costs  to  be  levied  of  the  goods 
and  chattels  of  J.  W.,  in  the  hands  of  S.  H.,  his  administrator, 
if  so  much  thereof  he  hath,  but  if  not  then  out  of  the  goods  and 
chattels  of  S.  H.  There  being  no  goods  and  chattels  of  J.  W. 
in  the  hands  of  S.  H.,  the  sheriff  levies  the  execution  on  the  in- 
dividual property  of  S.  H.,  and  takes  a  forthcoming  bond,  which 
recites  the  execution  as  being  against  the  goods  and  chattels  of 
S.  H.,  administrator  of  J.  W.,  deceased.  Held :  There  is  no  sub- 
stantial variance  between  the  execution  and  the  recital  thereof 
in  the  forthcoming  bond. 

In  the  case  of  Spencer  vs.  Pilcher,  10  Leigh,  490  (2d  edition, 
612),  decided  July,  1839.  A  forthcoming  bond  dated  the  1st 
day  of  November,  1834,  being  conditioned  for  the  delivery  of  the 
property  "  on  the  third  Monday  of  November  next,"  it  is  con- 
tended that  there  could  be  no  breach  of  the  condition  until  the 
third  Monday  in  November,  1835.  Held :  By  the  court  of  ap- 
peals (construing  the  instrument  according  to  the  subject-matter 
and  the  evident  meaning  of  the  parties),  that  the  day  for  the 
delivery  of  the  property  was  the  third  Monday  of  November, 
1834. 

A  forthcoming  bond  being  forfeited,  notice  is  given  that  a 
motion  wiU  be  made  on  it.  After  the  notice,  and  before  the  term 
to  which  it  is  given,  a  supersedeas  is  awarded  to  the  original 
judgment,  and  it  is  perfected  by  giving  bond  and  security.  The 
motion  is  then  continued  from  term  to  term,  until  there  is  a  de- 
cision affirming  the  original  judgment.  After  that  decision,  but 
before  a  copy  of  it  is  received  by  the  court  in  which  the  motion 
is  pending,  the  motion  is  heard,  and  judgment  entered  against 
the  obligors.  It  is  objected  that  the  court  proceeded  on  its  own 
unofficial  information  that  the  original  judgment  had  been 
affirmed.  But  the  only  evidence  in  the  record  to  show  that  a 
supersedeas  had  been  awarded  is  the  supersedeas  bond.     Held : 

1.  The  right  to  move  a  forthcoming  bond  is  not  suspended  by 
a  supersedeas  to  the  original  judgment. 

2.  Whether  this  be  so  or  not,  the  writ  of  supersedeas  not  hav- 
ing been  given  in  evidence  in  the  court  below,  there  is  no  suf- 
ficient foundation  for  the  objection  to  the  proceedings  of  that 
court  upon  the  motion. 


Citations  to  the  Code  of  Virginia.  939 

In  the  case  of  Booth  vs.  Kinsey,  8  Grat.,  560,  decided  April, 
1852.  A  debtor  in  execution  executes  a  forthcoming  bond  to 
the  creditor,  and  a  third  person  and  the  obligee  execute  the 
bond  with  the  debtor  as  his  sureties.  The  bond  being  forfeited, 
the  obligee  gives  notice  to  the  principal  obligor  and  the  other 
surety  of  a  motion  for  award  of  execution  upon  the  bond  against 
them,  but  the  notice  does  not  mention  the  obligee  as  a  co- 
obligor.  Held :  That  the  bond  is  a  valid  bond  to  bind  the  other 
surety,  but  that  he  is  only  liable  as  a  co-surety  with  the  obligee. 

That  if  the  principal  creditor  proves  insolvent,  the  surety  may 
be  relieved  to  the  extent  of  one  moiety  of  the  debt,  either  by 
bill  in  equity  or  by  motion  under  the  statute  for  the  relief  of 
sureties.  The  notice  is  not  defective  for  failing  to  mention  the 
obligee  as  a  co-obligor. 

In  the  case  of  Washingtoii  vs.  Smith,  3  Call,  13,  decided  May 
1,  1801,  it  was  held :  A  forthcoming  bond  given  by  the  defend- 
ant only,  without  any  security,  will  support  a  motion,  and  judg- 
ment will  be  rendered  on  it  in  favor  of  the  plaintiff. 

In  the  case  of  Garland  et  als.  vs.  Lynch,  1  Rob.,  545  (2d  edi- 
tion, 576).  The  decisions  in  RandolpKs  Administratrix  vs. 
Randolph,  3  Rand.,  490,  Taylor  vs.  Dundass,  1  Wash.,  92,  and 
Downman  vs.  Downm^an' s  Executor,  2  Wash.,  189,  approved. 
In  conformity  with  the  principle  of  the  first  case.  Held :  That 
if  judgment  be  rendered  against  two,  and  one  gives  a  forthcom- 
ing bond  with  security  which  is  forfeited,  the  other  is  not  dis- 
charged from  the  original  judgment,  if  the  obligors  in  the  forth- 
coming bond  prove  insolvent.  But  also  held,  according  to  the 
decisions  in  the  two  last  cases,  that  the  forfeited  forthcoming 
bond  will  prevent  any  execution  or  other  proceeding  on  the 
original  judgment  uutil  the  same  be  quashed. 

Even  after  execution  has  been  awarded  on  a  forthcoming 
bond,  the  bond  may  be  quashed  on  the  motion  of  the  creditor 
to  enable  him  to  have  execution  on  the  original  judgment,  if  the 
case  be  one  in  which  the  execution  on  the  forthcoming  bond  has 
proved  unavailing,  Avithout  any  default  to  the  creditor. 

Where  the  sheriff  takes  from  the  owner  of  goods  levied  on 
under  execution  a  forthcoming  bond  with  security,  and,  upon  the 
same  being  forfeited  and  execution  awarded  thereon,  the  obligors 
prove  insolvent,  the  sheriff  will  not  generally  be  liable  to  the 
creditor  on  account  of  such  insolvency,  if  he  can  establish  that 
the  security  was  sufficient  at  the  time  of  taking  the  bond.  But 
where  execution  against  two  is  levied  on  the  goods  of  one,  and 
he  gives  a  forthcoming  bond  with  the  other  as  his  only  surety, 
such  surety  being  already  bound,  is  not  security  such  as  the 
law  requires;  and  if  the  execution  on  the  forthcoming  bond 
prove  unavailing,  the  sheriff  will,  in  this  case,  be  liable  to  the 
creditor,  although  he  may  prove  that  the  surety  in  the  forth- 


940  Citations  to  the  Code  of  Virginia. 

coming  bond  was  sufficient  in  point  of  estate  at  the  time  of 
taking  the  bond.  In  a  suit  on  a  sheriff's  bond  under  the  act 
there  is  a  demurrer  to  the  evidence,  and  it  appearing  thereby 
that  the  party  for  whose  use  the  suit  is  brought  had  an  execu- 
tion against  two,  which  was  levied  on  the  goods  of  one,  who 
gave  a  forthcoming  bond  with  the  other  as  security,  and  that 
the  bond  being  forfeited  the  execution  awarded  thereon  proved 
unavailing,  the  circuit  court  holds  the  evidence  sufficient  to 
support  the  action.  Some  of  the  evidence  which  had  been  in- 
troduced tending  to  show  that  part  of  the  debt  might  have  been 
made  under  the  execution  on  the  forthcoming  bond  if  the  credi- 
tor had  not  interfered,  the  counsel  for  the  defendants  then  in- 
sists that  the  jury  weigh  the  evidence  in  assessing  the  damages. 
But  the  opinion  of  the  circuit  couii;  is  that  the  plaintiff  must  re- 
cover the  amount  of  his  debt,  or  nothing,  and  that,  the  evidence 
cannot  be  urged  before  the  jury  in  mitigation  of  damages.  Held: 
That  in  fixing  the  damages  absolutely  at  the  amount  of  the  debt, 
and  thus  taking  from  the  jury  all  discretion,  the  circuit  court 
erred. 

In  the  case  of  Lusk  vs.  Ramsay,  3  Munf.,  417,  decided  Novem- 
ber 9,  1811,  it  was  held:  The  surety  in  a  forthcoming  bond  has 
a  right  to  deliver  the  property  on  the  day  of  sale,  if  he  can  on 
that  day  peaceably  obtain  possession  thereof.  If  the  sheriff, 
after  taking  a  forthcoming  bond,  accept  the  same  goods  from 
the  defendant  in  discharge  of  his  body  from  another  execu- 
tion, and  prevent  the  surety  in  such  bond  from  delivering  them 
on  the  day  of  sale  therein  appointed,  the  court  of  equity,  on  a 
bill  for  discovery  and  injunction,  exhibited  by  the  surety,  will 
require  the  sheriff,  and  all  parties  concerned,  to  answer  a  charge 
of  fraud  and  combination,  and  (whether  fraud  be  established 
or  not)  will  perpetually  enjoin  a  judgment  rendered  against 
the  surety  upon  the  forthcoming  bond  as  unconscionable 
against  him  ;  leaving  the  plaintiff  in  that  judgment  to  his  remedy 
against  the  sheriff,  and  the  sheriff  to  his  remedy  against  the 
person  who  indemnified  him,  or  to  whom,  by  mistake,  or  in  his 
own  wrong,  he  paid  the  money  in  satisfaction  of  the  second 
execution. 

The  plaintiff,  in  the  second  execution,  to  satisfy  which  the 
sheriff  improperly  sells  the  goods,  need  not  be  a  party  to  such 
suit  in  chancery,  because  the  surety  in  the  bond  wants  no  decree 
against  him. 

In  the  case  of  Taylor  vs.  Dundass,  1  Wash.,  92,  decided  at 
the  spring  term,  1792,  it  was  held :  A  replevy  bond  is  the  same 
as  if  the  estate  had  been  sold  to  the  amount  of  the  debt,  and 
though  it  is  an  indulgence  to  the  defendant,  still  the  execution  is 
considered  as  levied  and  the  judgment  discharged. 

In  the  case  of  Dowiiman  vs.  Downmans  Executor,  2  Wash., 


Citations  to  the  Code  of  Virginia.  941 

243  (1st  edition,  189-91),  decided  at  April  term,  1796,  it  was 
held :  A  forthcoming  bond  should  be  made  payable  to  the  credi- 
tor, and  not  to  the  sheriff;  the  amount  of  the  execution  ought 
to  be  recited,  and  the  condition  should  be  to  deliver  the  pro- 
perty at  the  time  and  place  of  sale,  and  not  when  demanded. 
If  the  bond  be  defective  in  any  of  the  above  instances  the  court 
may,  and  ought  to,  quash  it  on  motion. 

A  faulty  forthcoming  bond  whilst  in  force  is  a  satisfaction  of 
the  judgment,  and  a  second  execution  cannot  issue  till  it  is 
quashed.  The  common  course  is  to  quash  the  execution,  as 
well  as  the  bond,  if  a  motion  for  that  purpose  be  made,  other- 
wise it  is  not  necessary. 

In  the  case  of  Randolph'' s  Administratrix  vs.  Randolph,  3 
Band.,  490,  decided  October,  1825,  it  was  held :  Where  judg- 
ment is  obtained  against  principal  and  surety  to  a  bond,  and 
the  latter  gives  a  forthcoming  bond  which  is  forfeited,  the  orig- 
inal judgment  is  not  thereby  satisfied,  although  any  farther 
proceedings  on  it  will  be  barred  until  the  forthcoming  bond 
shall  be  quashed. 

For  reference  to  1  Kob.,  545,  see  supra,  this  chapter. 

In  the  case  of  Robinson  vs.  Sherman,  2  Grat.,  178,  decided 
July,  1845.  A  judgment  is  obtained  against  three  persons,  and 
execution  is  issued  thereon,  which  is  levied  on  the  property  of 
one  of  them,  who  thereupon  gives  a  bond  with  security  for  the 
forthcoming  and  delivery  of  the  property  on  the  day  of  sale; 
and  this  bond  is  forfeited.  Held :  The  execution  and  forfeiture 
of  the  bond  did  not  discharge  and  extinguish  the  original  debt 
as  against  the  other  joint  debtors. 

The  surety  of  a  joint  debtor  in  a  forthcoming  bond  becomes, 
upon  the  forfeiture  thereof,  surety  for  the  debt,  and,  when  he 
has  discharged  it,  is  entitled  to  be  substituted  to  all  the  rights 
of  the  creditor  against  the  original  debtors  subsisting  at  the 
time  he  became  so  bound  for  the  debt.  The  surety  in  a  forth- 
coming bond  is  entitled  to  recover  from  the  original  debtors 
the  principal,  interest,  and  costs  of  the  original  judgment,  but 
not  the  costs  incurred  by  the  execution  and  forfeiture  of  the 
forthcoming  bond.  The  original  debtors  are  each  bound  for 
the  whole  amount  of  the  debt  to  the  surety  in  the  forthcoming 
bond  who  discharges  it. 

In  the  case  of  Leake  vs.  Ferguson,  2  Grat.,  419,  decided  Jan- 
uary, 1846,  it  was  held :  On  a  joint  judgment  against  several, 
the  service  of  a  ca.  sa.  on  one,  and  the  execution  and  forfeiture 
of  a  forthcoming  bond  by  him,  does  not  extinguish  the  lien  of 
the  judgment  upon  the  land  of  the  others.  In  such  a  case,  the 
party  upon  whom  the  ca.  sa.  was  served,  and  who  executed  the 
forthcomiog  bond,  having  been  a  surety  of  the  principal  debtor 
in  the  judgment,  his  surety  in  the  forthcoming  bond    having 


942  Citations  to  the  Code  of  Vieginia. 

paid  the  debt  is  entitled  to  the  creditor's  remedies  against  the 
land  of  the  principal  debtor ;  and  this,  though  the  land  was  sold 
by  the  principal  debtor,  and  had  come  into  the  hands  of  a  hona 
fide  purchaser  for  value  without  notice  before  the  service  of  the 
ca.  sa. 

In  the  case  of  Jones,  etc.,  vs.  Myrick's  Executors,  8  Grat.,  179, 
decided  Oxjtober,  1851,  it  was  held:  A  forthcoming  bond  for- 
feited has  the  force  of  judgment  so  as  to  create  a  lien  upon  the 
lands  of  the  obligors  only  from  the  time  the  bond  is  returned  to 
the  clerk's  office.  There  being  no  evidence  that  the  bond  was 
returned  to  the  clerk's  office  before  the  day  on  which  there  was 
an  award  of  execution  by  the  court,  it  will  be  regarded  as  hav- 
ing been  returned  to  the  office  on  that  day. 

A  judgment  confessed  in  court  in  a  pending  suit,  and  the 
oath  of  insolvency  taken  thereon  by  the  debtor  upon  his  sur- 
render by  his  bail,  has  relation  to  the  first  moment  of  the  first 
day  of  the  term  ;  but  a  forfeited  forthcoming  bond  which  is  not 
returned  to  the  clerk's  office  until  some  day  in  the  term  after  the 
first,  when  there  is  an  award  of  execution  thereon,  has  no  rela- 
tion ;  and  therefore  the  assignment  by  operation  of  laAv  under 
the  first  has  preference  over  the  lien  of  the  forthcoming  bond. 

Though  a  forthcoming  bond  is  forfeited  and  not  quashed,  yet 
in  equity  the  lien  of  the  original  judgment  still  exists;  and  if 
the  obligors  in  the  bond  prove  insolvent,  so  that  the  debt  is  not 
paid,  a  court  of  law  will  quash  the  bond  so  as  to  revive  the  lien 
of  the  original  judgment.  And  a  court  of  equity  having  juris- 
diction of  the  subject,  will  treat  the  bond  as  a  nullity,  and  pro- 
ceed to  give  such  relief  as  the  creditor  is  entitled  to  under  the 
original  judgment. 

In  the  case  of  Ballard  et  als.  vs.  Whitlock^  18  Grat.,  235,  de- 
cided January,  1867,  it  was  held:  A  forthcoming  bond,  with 
condition  to  deliver  property  taken  in  execution  on  a  day  of 
sale  occurring  after  the  return-day,  is  valid. 

A  judgment  and  award  of  execution  upon  a  forfeited  forth- 
coming bond  having  been  entered  by  default  upon  a  day  prior 
to  that  to  which  notice  was  given,  the  court  in  which  the  judg- 
ment and  award  of  execution  was  rendered  has  jurisdiction  on 
the  motion  of  the  plaintiff  to  set  aside  the  judgment  and  quash 
the  execution,  upon  reasonable  notice  to  the  defendants. 

In  the  case  of  Mhea  et  als.  vs.  Preston,  75  Va.,  757,  decided 
July  21, 1881,  it  was  held,  p.  774;  A  forfeited  forthcoming  bond 
stands  as  a  security  for  the  debt,  and  though  while  in  force  no 
execution  can  be  taken  out  or  other  proceeding  be  had  at  law 
to  enforce  the  original  judgment,  yet  the  bond  is  not  an  abso- 
lute satisfaction.  For  if  it  be  faulty  on  its  face,  or  the  security 
when  taken  be  insufficient,  or  the  obligors,  though  solvent  when 
the  bond  is  taken,  become  insolvent    afterwards,  the  plaintiff 


Citations  to  the  Code  of  Virginia.  943 

may,  for  these  or  other  good  reasons,  on  his  motion,  have  his 
bond  quashed  and  be  restored  to  his  original  judgment.  And 
though  the  bond  be  not  quashed,  if  it  appear  that  it  may  pro- 
perly be,  a  court  of  equity  which  looks  to  substance  rather 
than  form,  and  when  occasion  requires  it  treats  that  as  done 
which  ought  to  be  done,  will  regard  the  bond  as  a  nuUity,  and 
the  original  judgment  as  in  full  force. 

In  the  case  of  Barksdale  <&  Terry  vs.  Fitzgerald^  76  Va.,  892 
and  895. 

1.  Subrogation. — Principal  and  Surety. — Evidence. — Case 
Here. — Judgment  against  T.  and  another  docketed  April,  1872 ; 
fi.  fa.  levied  and  forthcoming  bond  taken  with  E.  as  surety ; 
bond  forfeited  and  returned  May,  1873,  but  not  docketed ;  judg- 
ment on  the  bond  against  all  the  obligors  January  19, 1874,  and 
docketed.  E.  claims  that  he  paid  the  judgment  as  surety,  and 
asks  to  be  substituted  to  the  lien  of  the  judgment  on  the  land 
of  T.,  conveyed  by  trust  deed  to  secure  F.,  recorded  January  4, 
1874;  fi.fa.  on  last  judgment  levied  on  principal  obhgor's  pro- 
perty, but,  with  consent  of  surety,  held  up  by  plaintifTs  order. 
The  debt  was  then  paid  without  sale.  On  the  last  fi.  fa.  is  an 
endorsement  purporting  to  be  signed  by  W.  &  S.,  the  judg- 
ment-creditor's attorneys,  to  the  effect  that  the  fl.  fa.  was  satis- 
fied by  E.,  and  one  of  the  attorneys  deposed  that  he  was  induced 
to  hold  up  the  fi.  ft.  by  the  promise  of  one  of  the  principals  or 
the  surety,  E.,  or  both,  to  see  the  money  paid  at  an  early  day, 
whilst  the  testimony  of  the  sheriff  tends  to  show  that  if  pay- 
ment was  made  by  either  the  principal  or  E.,  it  was  probably 
by  the  former.     Held  : 

1.  The  endorsement  on  the  fi.  fa.  is  not  evidence  against  any 
other  than  the  judgment-creditor. 

2.  The  071US  of  proving  the  payment  by  himself,  so  as  to  en- 
title him  to  the  relief  he  asks,  rests  on  E.,  and  as  it  is  insufl&cienfc, 
the  other  questions  involved  are  left  undecided.  • 

See  the  references  cited  to  Section  3574. 

In  the  case  of  Lipscomb's  Administrator  vs.  Davis's  Admin- 
istrator, 4  Leigh,  303,  decided  February,  1833,  it  was  held: 
The  statute  of  limitations,  whereby  the  remedy  on  a  judgment 
by  debt  or  scire  facias  is  limited  to  ten  years,  is  no  bar  to  a 
motion  on  a  forthcoming  bond  of  more  than  ten  years  standing. 
It  seems  that  a  forthcoming  bond  has  not  the  force  of  judg- 
ment till  it  is  returned  forfeited,  and  filed  in  the  clerk's  office ; 
and  even  after  it  is  filed,  it  is  only  in  a  partial  sense  that  it  has 
the  force  of  judgment  before  execution  upon  it  is  awarded. 

In  the  case  of  Pleasants  &  Co.  vs.  Lewis^  1  Wash.,  273,  de- 
cided at  the  fall  term,  1794.  A  forthcoming  bond  for  one  thou- 
sand bushels  of  wheat  was  taken ;  a  quantity  of  wheat  was  de- 
livered, and  received  without  objection  by  the  sheriff;  it  was 
afterwards  found  to  contain  about  five  hundred  bushels.    Held : 


944  Citations  to  the  Code  op  Virginia. 

Condition  not  performed  bj  a  partial  delivery,  and  penalty  for- 
feited. 

In  the  case  of  Nicholas  vs.  Fletcher^  1  Wash.,  330,  decided  at 
the  fall  term,  1794,  it  was  held;  It  is  not  necessary  for  the 
plaintiff  to  prove  a  forfeiture  after  the  sheriff  has  returned  upon 
the  bond,  but  it  is  incumbent  on  the  defendant  to  prove  per- 
formance. 

In  the  case  of  Bernard  vs.  Scott's  Administrators,  3  Rand., 
622,  decided  November,  1825,  it  was  held :  Where  a  forthcom- 
ing bond  is  given,  and  the  debtor,  on  the  day  of  sale,  pays  to 
the  creditor  the  full  amount  of  the  debt,  interest,  and  costs,  ex- 
cept the  sheriff's  commission,  the  bond  will  be  forfeited,  and  a 
motion  will  lie  upon  it. 

In  the  case  of  Rucker  vs.  Harrison,  6  Munf.,  181,  decided 
October  15,  1818,  it  was  held :  If  a  supersedeas  to  judgment,  ex- 
ecution being  levied  and  a  forthcoming  bond  taken,  be  issued 
before  the  day  of  sale,  and  thereupon  the  property  be  not  forth- 
coming, the  penalty  of  the  bond  is  saved,  and  no  motion  lies 
Tip  on  it. 

Eor  references  to  2  Wash.,  189,  191,  and  to  1  Rob.,  545,  see 
supra,  this  chapter. 

In  the  case  of  Jones  vs.  Hull,  1  H.  &  M.,  211,  decided  June 
2,  1807,  it  was  held :  The  sheriff's  failure  to  make  a  return  on 
an  execution  is  no  ground  for  reversing  a  judgment  obtained  on 
a  forthcoming  bond  taken  in  pursuance  thereof. 
^^    For  reference  to  1  Munf.,  605,  see  supra,  this  chapter. 

For  references  to  2  Munf.,  266,  and  4  Munf.,  380,  see  supra^ 
this  chapter ;  also  for  1  Wash.,  161,  and  4  Munf.,  380. 

In  the  case  of  fJewlett  vs.  CJiamberlaine,  1  Wash.,  367,  de- 
cided at  the  fall  term,  1794,  it  was  held:  Where  the  bond  ia 
made  payable  to  the  sheriff  an  action  of  debt  may  be  maintained 
by  the  creditor. 

In  the  case  of  Booker's  Executor  vs.  Coutts's  Executor,  1  Call, 
243,  (2d  edition,  213),  decided  May  15, 1798,  it  was  held :  Execu- 
tors may  maintain  an  action  of  debt  upon  a  three  months  re- 
plevy bond  payable  to  their  testator. 

In  the  case  of  Beale  vs.  Downman  et  als.,  1  Call,  249  (2d  edi- 
tion, 219),  decided  May  15, 1798,  it  was  held :  If  a  forthcoming 
bond  be  taken  payable  to  the  sheriff,  he  may  maintain  an  action 
of  debt  upon  it. 

In  the  case  of  Syme  vs.  Johnson,  3  Call,  523  (2d  edition,  453), 
decided  June  30,  1790,  it  was  held:  It  is  not  a  valid  objection 
to  a  surety  to  an  appeal  bond  that  he  was  surety  to  the  injunc- 
tion bond  also. 

In  the  case  of  Edmonds  vs.  Green,  1  Rand.,  44,  decided  Jan- 
uary, 1822,  it  was  held :  A  confession  of  judgment  on  a  forth- 
coming bond  will  operate  as  a  release  of  errors  in  the  original 


Citations  to  the  Code  op  Virginia.  945 

judgment.  Therefore,  where  an  office-judgment  is  erroneously 
entered  up  against  the  principal  and  special  bail,  the  latter 
afterwards  gives  a  forthcoming  bond,  confesses  judgment  on  the 
said  bond,  he  cannot  avail  himself  of  the  error  in  the  original 
judgment. 

In  the  case  of  Cooper  {Ouardian)  vs.  Daughet^ty' s  Adminis- 
trators et  als.,  85  Va.,  343,  decided  August  23, 1888,  it  was  held  : 
Equity  will  treat  as  a  nullity  a  forfeited  forthcoming  bond,  on 
the  execution  issued  on  the  judgment  whereon  there  has  been 
a  return  of  7iulla  bona,  and  regard  the  lien  of  the  original  judg- 
ment as  still  subsisting  for  the  benefit  of  the  creditor. 

In  the  case  of  Newberry  vs.  Sheffey  {Commissioner),  89  Va., 
286,  decided  July  6,  1892,  it  was  held :  Under  Code,  Section 
3396,  judgment  on  a  forthcoming  bond  may  be  had  against  the 
sureties,  though  the  principal  has  never  been  served  with  a 
notice  of  the  motion. 

Section  3620. 
See  references  to  Section  3210. 

Section  3621. 

In  the  case  of  Allen  et  als.  vs.  Hart^  18  Grat.,  722,  decided 
April,  1868,  it  was  held :  The  defence  of  set-off  is  admissible 
in  a  motion  upon  a  forthcoming  bond  taken  on  a  warrant  of 
distress. 

In  the  case  of  Carter  et  als.  vs.  Grants  Administrator,  32 
Grat.,  769,  decided  February  5,  1880,  it  was  held :  On  proceed- 
ings upon  a  forthcoming  bond  given  on  a  distress  for  rent, 
whether  by  motion  or  by  action  on  the  bond,  the  plaintiff  must 
prove  the  contract  of  rent  for  which  the  distress  was  sued  out. 
On  such  proceeding,  though  the  warrant  of  distress  was  for 
more  rent  than  was  due,  the  plaintiff  may  have  judgment  for  the 
less  amount  due. 


TITLE  LI. 

CHAPTER  CLXXVIII. 

In  the  Jlomestead  Cases,  22  Grat.,  266,  decided  Jane  13, 1872, 
it  was  held:  Article  11,  Section  1,  of  the  Constitution  of  Vir- 
ginia, and  the  act  of  June  27,  1870,  Chapter  157,  passed  in  pur- 
suance thereof,  in  relation  to  homestead  exemptions,  are  in 
conflict  with  Article  8,  Section  10,  of  the  Constitution  of  the 
United  States,  which  provides  that  no  State  shall  pass  any  law 
impairing  the  obligation  of  contracts,  so  far  as  the  Virginia 

60 


946  Citations  to  the  Code  of  Vibginia. 

Constitution  and  Acts  apply  to  debts  contracted  before  that 
Constitution  went  into  operation. 

In  the  case  of  Rose  and  Wife  vs.  Sharpless  <&  Son,  33  Grat., 
153,  decided  April,  1880,  it  was  held :  Where  a  householder  or 
head  of  a  family  executes  a  homestead  deed  as  a  part  and  in 
furtherance  of  a  design  to  hinder,  delay,  and  defraud  his  credi- 
tors in  the  recovery  of  their  just  debts,  such  deed  will  be  viti- 
ated and  invalidated  by  such  conduct. 

The  Constitution  and  Laws  of  Virginia  not  allowing  property 
to  be  claimed  as  exempt  for  debts  contracted  for  the  purchase 
price  of  such  property  or  any  part  thereof,  where  a  large  por- 
tion of  goods  claimed  as  exempt  has  not  been  paid  for,  and  is 
so  mingled  with  those  that  have  been,  as  to  put  it  out  of  the 
power  of  the  vendors  to  distinguish  between  the  two,  the  ontis 
is  on  the  person  claiming  the  exception  to  show  which  have  been 
paid  for,  and  he  failing  to  do  this,  they  will  all  be  treated  as  not 
having  been  paid  for  as  far  as  the  homestead  deed  is  concerned, 
and  therefore  not  exempt  under  the  law.  Quoere :  Can  a  "  home- 
stead "  be  claimed  in  a  shifting  stock  of  goods  used  in  the  way 
of  trade? 

In  the  case  of  Shipe,  Cloud  (&  Co.  vs.  Repass  et  als.,  28  Grat., 
716,  decided  July  26,  1877,  it  was  held:  Where  a  grantor  in  a 
conveyance  of  land  had  claimed  homestead  in  bonds  given  for  a 
part  of  the  purchase-money  by  the  grantee,  and  the  convey- 
ance is  afterwards  set  aside  as  fraudulent  and  void  as  to  judg- 
ment-creditors of  the  grantor,  he  may  claim  homestead,  as 
against  the  creditors,  in  the  land  or  the  proceeds  of  the  sale 
thereof  to  the  amount  of  said  bonds. 

In  the  case  of  Boynton  et  als.  vs.  MacNeal  et  ah.,  31  Grat., 
456,  decided  February  6,  1879.  B.  conveys  a  house  and  lot  to 
H.  in  trust  for  the  separate  use  of  B.'s  wife.  M.,  a  creditor  of 
B.,  files  a  bill  to  set  the  deed  aside  as  fraudulent  and  void  as  to 
creditors  of  B.,  and  so  the  court  decrees.  B.  then  executes  a 
deed  of  homestead  of  the  house  and  lot,  and  files  his  petition 
in  the  cause  to  be  allowed  his  homestead.  Held  :  B.  is  entitled 
to  his  homestead  in  the  house  and  lot  as  against  M.,  the  cred- 
itor. 

In  the  case  of  Marshall  vs.  Sears'  Executors,  79  Va.,  49,  de- 
cided April  17,  1884,  it  was  held:  Where  there  is  a  fraudulent 
conveyance  of  property,  which  is  subsequently  annulled  at  the 
suit  of  the  creditor,  the  grantor  is  not  estopped,  as  against  the 
creditor,  to  assert  his  right  of  homestead  in  the  premises. 

In  the  case  of  Brockenhrougfi  (^Executor)  et  als.  vs.  Brocken- 
hrough  [Administrator)  et  als.,  31  Grat.,  580  and  596,  decided 
March  13,  1879.  A  deed  of  trust  to  secure  certain  debts  con- 
veys certain  real  estate,  and  the  grantor  reserves  in  it,  to  him- 
self and  his  family,  all  exemptions  and  property  allowed  by  the 


Citations  to  the  Code  of  Virginia.  947 

Constitution  of  Virginia  and  by  all  laws  passed  in  pursuance 
thereof,  and,  in  addition  thereto,  all  exemptions  allowed  under 
the  bankrupt  laws.     Held:  The  reservation  is  legal  and  valid. 

In  the  case  of  Blose  vs.  Bear  et  al.,  87  Va.,  177,  decided  De- 
cember 4,  1890,  it  was  held:  Lien  of  judgment  attached  before 
homestead  was  claimed  in  land  cannot  be  enforced  during  the 
homestead's  existence;  but  after  the  homestead  is  abandoned, 
it  has  priority  over  a  trust  deed  executed  during  the  occupancy 
of  the  land  as  a  homestead. 

Section  3630. 

In  the  case  of  Farinholt  vs.  Lukardy  10  Va.  Law  Journal, 
213,  decided  February  11,  1886,  it  was  held :  One  engaged  in 
carrying  the  United  States  mail  over  a  country  post-route  is  a 
"laboring  person"  within  the  meaning  of  those  words  as  used 
in  the  Virginia  Constitution,  Article  XL,  Section  1 ;  and  the 
fact  that  he  owns  the  horse  and  vehicle  used  by  him  for  that 
purpose  does  not  alter  the  case. 

In  the  case  of  The  Commonwealth  vs.  Ford,  29  Grat.,  683, 
decided  January  17,  1878,  it  was  held:  The  third  exception  in 
the  proviso  to  the  1st  Section  of  Article  11,  of  the  Constitution 
of  the  State  in  relation  to  homestead  exemptions,  which  is, 
"For  liabilities  incurred  by  any  public  officer,  or  officer  of  a 
court,  or  other  fiduciary,  or  any  attorney- at-law  for  money  col- 
lected," embraces  the  liability  of  a  collector  of  taxes  and  also  of 
his  sureties  in  his  official  bond,  and  therefore  the  said  sureties  are 
not  entitled  to  their  homestead  exemptions,  as  against  the  Com- 
monwealth, in  a  proceeding  against  them  and  their  principal  to 
recover  the  amount  of  taxes  for  which  the  collector  had  failed 
to  account. 

In  the  case  of  Reed  et  ah.  vs.  Union  Bank  of  Winchester  et  ah., 
29  Grat.,  719,  decided  January  31,  1878,  it  was  held  :  The  act 
which  authorizes  the  waiver  of  the  homestead  exemption  is  not 
in  conflict  with  the  12th  Article  of  the  Constitution  of  the  State ; 
and  if  a  party  executing  his  bond  or  note  waives  his  homestead 
exemption  as  to  the  bond  or  note,  neither  he  nor  his  wife  can 
set  up  said  homestead  exemption  as  against  the  said  bond  or 
note. 

In  the  case  of  Linkenhoker' s  Heirs  vs.  Detrick  et  ah.,  81  Va., 
44,  decided  September  24,  1885,  it  was  held:  The  act  which 
authorizes  the  waiver  of  the  homestead  exemption,  whether 
made  before  or  after  the  property  has  been  set  apart,  is  not  in 
conflict  with  the  11th  Article  of  the  Constitution  of  this  State; 
and  if  a  party  executing  his  bond  or  note  before  or  after  the 
property  has  been  set  apart  as  his  homestead  exemption  waives 
his  homestead  exemption  as  to  the  bond  or  note,  neither  he  nor 
his  ^vife  in  his  lifetime,  nor  after  his  decease,  neither  his  widow 


948  Citations  to  the  Code  of  Virginia. 

nor  his  infant  children,  can  set  up  said  homestead  exemption  as 
against  said  bond  or  note. 

In  the  case  of  Wray  vs.  Davenport,  79  Va.,  19,  decided  April 
3, 1884,  it  was  held :  Constitution,  Article  11,  secures  homestead, 
yet  legislature  may  prescribe  mode  of  setting  it  apart,  only  it 
cannot  defeat  or  impair  the  benefit  thereof.  The  statute  is 
within  legislative  authority,  and  to  avail  himself  thereof  house- 
holder must  actually  claim  the  exemption  and  set  it  apart  as 
prescribed. 

In  the  case  of  Calhoun  vs.  Williams,  32  Grat.,  18,  decided 
July,  1879,  it  was  held :  An  unmarried  man  who  has  no  children 
or  other  persons  dependent  upon  him  living  with  him,  though 
he  keeps  house,  and  has  persons  hired  by  him,  is  not  a  house- 
holder or  a  head  of  a  family  within  the  meaning  of  these  terms 
as  used  in  the  Constitution  and  Laws  of  Virginia,  and  therefore 
is  not  entitled  to  the  homestead  exemption  as  provided  by  the 
same. 

The  terms  "householder"  and  "head  of  family"  are  held  ta 
have  the  same  meaning  in  the  provision  of  the  Constitution  and 
statute  relating  to  homesteads. 

In  the  case  of  Kennerly  vs.  Schwartz,  11  Va.  Law  Journal, 
697,  decided  September  22,  1887,  it  was  held :  Where  a  judg- 
ment has  been  obtained  against  one  who  is  not  a  householder 
or  head  of  a  family,  and  has  become  a  lien  upon  his  land,  and 
he  subsequently  becomes  a  householder  or  head  of  a  family, 
the  judgment  has  priority  over  his  claim  to  a  homestead  ex- 
emption in  the  land,  but  he  may  claim  such  exemption  in  the 
land  after  satisfying  the  judgment. 

In  the  case  of  Lindsay  vs.  Murphy,  76  Va.,  428. 

1.  Homestead. — Citizens. — The  privilege  of  homestead  is  ac- 
corded, under  the  Constitution  of  Virginia,  only  to  citizens  of 
this  State  whilst  they  remain  such. 

2.  Idem. — Domicile. — Change  of  domicile  from  this  State 
puts  an  end  to  the  homestead  privilege. 

3.  Domicile. — Change. — Domicile  is  "residence  with  no  pre- 
sent intention  of  removal."  Mere  absence,  however  long,  ef- 
fects no  change  of  domicile. 

4.  Idem. — Burden  of  proof  of  change  of  domicile  is  on  him 
alleging  it. 

5.  Case  at  Bar. — M.  long  resided  in  Virginia,  where  he  had 
a  family  and  homestead.  Embarrassed,  he  left  his  family  here, 
took  some  personal  property,  and  went  to  South  Carolina,  and 
commenced  business  there.  The  family,  except  one  daughter 
at  school,  followed  him,  because  his  creditors  deprived  them  of 
the  means  of  subsistence.  The  proof  is,  he  went  to  South  Caro- 
lina to  raise  money  to  pay  his  debts,  without  intending  to  give 
up  his  domicile  in  Virginia.    On  a  bill  to  subject  the  house  and 


Citations  to  the  Code  of  Virginia.  949 

lot  duly  set  apart  as  M.'s  homestead  to  the  lien  of  a  judgment, 
on  the  ground  that  the  exemption  has  been  forfeited  by  his  re- 
moval. Held:  M.,  not  having  ceased  to  be  a  citizen  of  this 
State,  did  not  lose  or  abandon  his  homestead  exemption. 

In  the  case  of  Whiteacre  {Sheriff)  vs.  Rectdr  et  ux.,  29  Grat., 
714,  decided  January  31,  1878,  it  was  held :  A  homestead  ex- 
emption cannot  be  claimed  against  a  fine  due  the  Common- 
wealth, imposed  for  a  violation  of  the  criminal  laws. 

In  the  case  of  Frazier  vs.  Baker  et  ux.,  5  Va.  Law  Journal, 
565,  decided  September,  1881,  it  was  held:  The  homestead  ex- 
emption allowed  under  the  Constitution  and  Laws  of  Virginia 
cannot  be  claimed  against  a  judgment  for  a  tort. 

In  the  case  of  Burton  vs.  Mill,,  78  Va.,  468,  decided  March 
13,  1884,  it  was  held :  The  homestead  exemption  does  not  pro- 
tect against  a  demand  for  damages  for  breach  of  promise  to 
marry,  which  is  not  a  debt  contracted,  but  a  quasi  tort. 

In  the  case  of  Oppenheimer  vs.  Howell  et  als.,  76  Va.,  218. 

Homestead. — The  primary  object  of  the  act  is  to  authorize 
the  sale  of  a  homestead,  and  the  investment  of  the  proceeds  in 
a  new  one,  to  be  held  on  like  terms  as  the  original.  In  it  there 
is  nothing  to  authorize  the  debtor,  who  has  squandered  one 
homestead,  to  appropriate  another  against  subsequent  creditors. 

In  the  case  of  Hatcher  vs.  Creid's  Administrator  et  als.,  83 
Va,,  371,  decided  April,  1887,  it  was  held :  Where  a  fraudulent 
conveyance  of  property  is  subsequently  annulled  at  the  suit  of 
the  creditor,  the  grantor  is  not  estopped  as  against  the  creditor 
to  assert  his  rights  to  homestead  in  the  said  property. 

The  fact  that  the  homesteader  has  claimed  his  homestead  ex- 
emption in  the  bankrupt  court,  and  has  been  allowed  a  part 
thereof  by  the  assignee,  does  not  affect  his  claim  to  the  balance. 

In  the  case  of  Sears' s  Executor  vs.  Mnrshall,  83  Va.,  383,  de- 
cided May,  1887,  it  was  held :  Decree  or  former  appeal  remand- 
ing cause  to  circuit  court,  with  direction  to  assign  to  appellant 
(then)  as  his  homestead  the  proceeds  of  certain  property  em- 
braced in  a  deed  that  has  been  annulled  as  fraudulent,  concludes 
with  the  words,  "  unless  he  appears  not  entitled  to  the  same  on 
other  grounds " ;  and  the  circuit  court  disregarded  the  new  ob- 
jections presented  by  the  creditor  (the  then  appellee)  to  such 
assignment,  did  make  the  assignment.  There  is  no  error  in 
the  order  of  the  circuit  court.  The  intention  of  those  words 
not  being  to  open  up  the  matter  at  large  to  new  objections. 

In  the  case  of  Wilkinson  vs.  Merrill  et  als.,  87  Va.,  513,  decided 
March  19,  1891,  it  was  held :  Where  homestead  exemption  has 
been  regularly  set  apart,  it  is  for  the  benefit  of  the  householder 
and  his  family,  and  is  not  ended  by  the  latter's  decease. 

Section  3634. 
In  the  case  of  White  vs.  Owen  et  als.,  30  Grat.,  43,  decided 


950  Citations  to  the  Code  of  Virginia. 

March,  1878,  it  was  held :  A  deed  of  trust  to  secure  a  debt  exe- 
cuted by  the  grantor  and  his  wife,  conveying  real  and  personal 
property  which  had  been  previously  set  apart  by  the  husband 
as  his  homestead,  has  priority  over  the  homestead  exemption, 
and  the  said  property  may  be  subjected  to  satisfy  the  debt. 
Qucere:  Whether  the  deed  of  trust  by  the  husband,  in  which 
his  wife  did  not  join,  would  have  priority  to  the  homestead  ex- 
emption ? 

Section  3635. 

In  the  case  of  Helm  vs.  Helrns  Administrators  etals.,  30  Grat., 
404,  decided  July  18,  1878,  it  was  held :  A  widow,  whose  hus- 
band has  died  leaving  no  children  and  no  debts,  and  has  not 
claimed  the  homestead  in  his  lifetime,  is  not  entitled  to  a  home- 
stead in  his  estate  as  against  his  heirs. 

An  order  of  a  county  court  setting  apart  a  homestead,  made 
upon  the  ex  parte  application  of  his  widow,  is  of  no  effect  as 
against  the  heirs. 

In  the  case  of  Hanhy's  Administrator  vs.  Henritzes  Adminis- 
trators, 85  Va.,  177,  decided  August  2,  1888,  it  was  held:  This 
section  declares  that  the  homestead  shall  continue  after  house- 
holder's death  for  benefit  of  his  widow  and  children  until  her 
marriage  or  death  and  the  children  become  of  age,  and  after  its 
expiration  allows  the  property  to  be  sold  for  all  his  debts  ac- 
crued before  or  after  the  homestead  was  set  aside,  and  is  not 
unconstitutional. 

Section  3636. 

In  the  case  of  Hartorfy^.  Wellford.  (Judge),  27  Grat.,  356,  de- 
cided March  30, 1876,  it  was  held :  A  householder  dying  leaving 
a  widow,  without  having  had  a  homestead  assigned  him  in  his 
lifetime,  his  widow,  remaining  unmarried,  is  entitled  to  claim 
the  same  and  have  it  assigned  to  her. 

Section  3639. 
See  Wray  vs.  Davenport,  79  Va.,  19,  cited  ante,  Section  3630. 

Section  3646. 
See  Oppenheimer  vs.  Howell,  76  Va.,  218,  cited  ante,  Section 
3630. 

Section  3647. 
See  Reed  vs.   Union  Bank,  29  Grat.,  719,  cited  ante.  Section 
3630. 

See  Linkenhoker' s  Heirs  vs.  Dietrick  et  als.,  81  Va.,  44,  cited 
ante.  Section  3630. 

Seciion  3649. 
In  the  case  of  Strangers  Administrator  vs.  Strange  et  als..,  76 
Va.  240. 


Citations  to  the  Code  of  Virginia.  951 

After  the  exempted  property  has  been  set  apart,  the  resi- 
due shall  be  applied  tpwards  paying  all  the  decedent's  debts 
ratably  (unless  there  be  some  entitled  to  priority),  and  after  the 
residue  has  been  exhausted,  the  exempted  property  may  be  sub- 
jected to  pay  such  portions  of  the  homestead- waived  debts  as 
remain  unpaid. 

In  the  case  of  Scott  vs.  Cheatham  et  als.,  78  Va.,  82,  decided 
November  28,  1883,  it  was  held :  This  exemption  is  a  privilege 
conferred  by  law  on  the  debtor,  which  he  may  waive  or  claim 
at  his  option. 

Creditor  with  waiver  of  homestead  is  not  a  lien  or  preferred 
creditor ;  he  has  merely  the  right  to  apply  homestead  to  satisfy 
his  debt  so  far  as  unpaid,  after  taking  his  ratable  share  of  his 
debtor's  estate  outside  of  the  homestead. 

If  homestead  is  not  claimed  by  debtor  during  his  life,  nor  by  his 
widow  after  his  death,  the  whole  estate  must  be  distributed  rata- 
bly among  all,  unless  there  be  some  entitled  to  priority.  If 
claimed  either  way,  and  the  homestead  is  waived  as  to  some 
debts,  and  not  as  to  others,  all  the  debts  share  ratably  in  the 
surplus  above  the  exempted  property,  and  when  such  surplus 
has  been  exhausted,  the  exempted  property  may  be  subjected 
to  pay  such  portion  of  the  waiver  debts  as  remain  unpaid. 

In  the  case  of  Richardson  vs.  Butler,  1  Va.  Law  Journal,  120, 
decided  in  the  Chancery  Court  of  the  city  of  Richmond,  Feb- 
ruary, 1877,  it  was  held :  Under  the  homestead  laws  of  Virginia, 
the  homestead  right  is  not,  in  an  absolute  sense,  an  estate  in 
the  land.  The  fee  is  left  under  the  law  as  it  was  before,  subject 
to  a  right  of  occupancy  which  cannot  be  disturbed  while  the 
homestead  character  exists.  But  when  the  land  is  sold  it  loses 
its  character  as  homestead,  and  becomes  subject  in  the  pur- 
chaser's hands  to  all  prior  liens  which  have  been  duly  recorded 
against  the  homesteader. 

Section  3652. 

In  the  case  of  Crump  vs.  The  Commonwealth,  75  Va.,  922, 
decided  January,  1882,  it  was  held:  An  oath  by  a  laboring 
man,  a  householder  and  head  of  a  family,  in  a  proceeding  by 
garnishment  to  subject  his  wages,  not  exceeding  fifty  dollars 
per  month,  due  him  from  his  employer,  to  the  lien  of  a  jl.  fa. 
execution  that  he  did  not  sign  a  writing  purporting  to  be  signed 
by  him,  waiving  all  exemptions,  including  his  claim  as  a  laborer, 
is  immaterial  in  such  proceeding,  inasmuch  as  the  fifty  dol- 
lars exemption  to  laborers  cannot  be  waived  so  as  to  give  a  lien 
by  ji.  fa.  thereon. 

See  Farinholt  vs.  Luckhard,  10  Va.  Law  Journal,  213,  cited 
ante^  Section  3630. 

Section  3657. 

See  Calhoun  vs.  Williams,  32  Grat.,  18,  cited  ante,  Section  3630. 


952  Citations  to  the  Code  of  Virginia. 

TITLE  LII. 

CHAPTEE  CLXXIX. 
CHAPTEE  CLXXX. 

Section  3662. 

The  reference  to  2  Va.  Cases,  78,  is  in  point,  but  so  involved 
as  to  be  of  no  authority  on  this  question. 

The  case  referred  to  in  2  Va.  Cases,  483,  is  an  involved  opinion 
on  a  case  of  murder  in  the  first  degree,  but  throws  no  light  on 
the  distinction  between  murder  of  first  and  second  degree. 

In  Whiteford's  Case,  6  Eand.,  721,  decided  by  the  General 
Court,  November,  1828,  it  was  held  :  To  constitute  murder  in 
the  first  degree,  it  is  not  necessary  that  the  premeditated  design 
to  kill  should  have  existed  for  any  particular  length  of  time. 
If,  therefore,  the  accused,  as  he  approached  deceased,  and  first 
came  within  view  of  him,  at  a  short  distance,  then  formed  the 
design  to  kill,  and  walked  up  with  a  quick  pace  and  killed  him 
without  any  provocation  then  or  recently  received,  it  is  murder 
in  the  first  degree.  The  legislature  in  their  description  of  ofi'ences 
which  constitute  murder  in  the  first  degree  have  at  first  enumer- 
ated some  of  the  most  striking  instances  of  deliberate  and  cruel 
homicide ;  but  finding  it  impossible  to  enumerate  all  of  them, 
then  proceeded,  by  general  words,  to  embrace  all  kinds  of  wilful, 
deliberate  and  premeditated  killing.  It  is  improper  to  interpo- 
late the  word  "  such  "  in  that  general  description.  The  offence 
of  homicide  by  a  workman  throwing  timber  from  a  house  into 
the  street  of  a  populous  city  without  warning,  or  of  a  person 
shooting  at  a  fowl  aniino  furandi,  and  killing  a  man,  are  in- 
stances of  murder  in  the  second  degree. 

In  Jones's  Case,  1  Leigh,  598.  The  lines  between  murder  of 
first  and  second  degree  were  drawn  out,  but  in  such  shape  as  to 
be  useless  here. 

In  Bennett's  Case,  8  Leigh,  745,  decided  by  the  General 
Court,  December,  1837.  After  a  verdict  of  guilty  on  an  indict- 
ment for  murder,  prisoner  makes  affidavit  that  T.  C.  is  a  material 
witness  for  him  in  the  prosecution ;  that  he  was  not  summoned 
to  attend  the  trial,  because  prisoner  was  not  informed  that  he 
knew  anything  relating  to  the  matter,  and  that  prisoner  con- 
siders that  his  testimony  would  have  an  important  effect  on  a 
subsequent  trial  of  the  cause ;  and,  on  this  affidavit,  founds  a 
motion  for  a  new  trial,  which  the  court  overrules :  Held,  the 
new  trial  was  properly  refused. 

In  Mailes's  Case,  9  Leigh,  661,  decided  December,  1839,  by 
the  General  Court.  Indictment  for  murder  charges  that  the 
prisoner,  of  his  malice  aforethought,  did  make  the  assault ;  but 


Citations  to  the  Code  of  Virginia.  953 

the  striking  and  wounding,  and  the  killing  and  murder,  are  re- 
spectively charged  to  have  been  done  "of  his  malice  aforesaid." 
Held :  A  good  indictment  for  murder. 

In  Slaughter's  Case,  11  Leigh,  681,  decided  December,  1841, 
bj  the  General  Court.  S.,  having  conceived  and  declared  de- 
sign to  kill  P.,  the  parties  afterwards  met  in  front  of  P.'s  own 
house,  and  a  quarrel  ensued,  in  which  S.  gave  the  first  oflfence. 
P.  proposed  a  fight ,  upon  which  S.  retired  for  a  very  brief  time 
into  his  own  house,  armed  himself  with  a  loaded  pistol,  which 
he  concealed  in  his  pocket,  and  instantly  returned,  so  armed,  to 
the  scene  of  quarrel;  then  P.  threw  a  brickbat  at  S.,  which  did 
not  hit  him,  but  falling  short  of  him  broke,  and  a  small  frag- 
ment struck  S.'s  child,  standing  within  his  own  door,  who  cried 
out,  and  S.,  hearing  his  child  cry  out,  but  without  looking  to 
see  whether  he  was  hurt  or  not,  exclaimed,  "He  has  killed  my 
child,  and  I  will  kill  him ,"  advanced  towards  P.,  deliberately 
aimed  and  fired  the  pistol  at  him,  then  retreated  with  his  face 
towards  P.,  and  the  shot  took  effect  and  killed  P.  Upon  trial 
of  indictment  against  S.,  verdict  guilty  of  murder  in  the  second 
degree.  Held :  The  jury  might  well  impute  the  killing  to  the 
previous  malice,  and  not  to  the  sudden  provocation  of  P.'s 
assault,  and,  therefore,  the  verdict  was  right. 

Two  persons  quarrel,  and  one  throws  a  brickbat  at  the  other, 
who  has  privately  armed  himself  with  a  deadly  weapon,  and 
keeps  it  concealed  in  expectation  of  the  affray,  and  on  such 
assault  being  made  upon  him,  immediately  draws  forth  the 
weapon  and  with  it  kills  the  assailant,  though  then  retreating. 
Jury  finds  this  killing  murder  in  the  second  degree.  Held: 
Upon  these  circumstances,  even  without  proof  of  any  previous 
malice,  the  verdict  could  not  be  disapproved. 

In  IlilVs  Case,  2  Grat.,  594,  decided  December,  1845,  by  the 
General  Court,  it  was  held :  On  a  trial  for  murder,  the  dying 
declarations  of  the  deceased,  if  made  in  the  expectation  of 
death,  are  competent  evidence  against  the  prisoner.  The  proof 
of  the  deceased's  expectation  of  death  is  not  confined  to  his  de- 
clarations, but  the  fact  may  be  satisfactorily  established  by  the 
circumstances  of  the  case.  Regularly,  the  court  should  first  as- 
certain that  the  deceased  expected  to  die,  before  his  dying  de- 
clarations are  permitted  to  be  given  in  evidence  to  the  jury. 
But  if  the  court  permits  the  dying  declarations  of  the  deceased 
to  be  given  in  evidence  to  the  jury,  reserving  the  question 
whether  they  were  made  under  an  expectation  of  death ;  and  if 
it  appears  from  the  testimony  that  they  were  made  in  expecta- 
tion of  death,  and  were,  therefore,  competent  testimony,  this  is 
no  error  of  which  the  prisoner  can  complain. 

Where  homicide  is  proved,  the  presumption  is  that  it  is  mur- 
der in  the  second  degree.     If  the  Commonwealth  would  elevate 


954  Citations  to  the  Code  of  Virginia. 

it  to  murder  in  the  first  degree,  she  must  establish  the  charac- 
teristics of  that  crime ;  and  if  the  prisoner  would  reduce  it  to 
manslaughter,  the  burden  of  proof  is  upon  him. 

The  rule  of  law  is,  that  a  man  shall  be  taken  to  intend  that 
which  he  does,  or  which  is  the  immediate  or  necessary  conse- 
quence of  his  act. 

A  mortal  wound  given  with  a  deadly  weapon,  in  the  previous 
possession  of  the  slayer,  without  any,  or  upon  very  slight  pro- 
vocation, is,  pritna  facie,  wilful,  deliberate,  and  premeditated 
killing,  and  throws  upon  the  accused  the  necessity  of  proving 
extenuating  circumstances. 

In  McWMrts  Case,  3  Grat.,  594,  decided  June,  1846,  by  the 
General  Court,  it  was  held:  On  a  trial  for  murder,  it  is  not 
error  that  the  clerk,  in  charging  the  jury,  does  not  include  in 
his  enumeration  the  various  species  of  homicide  and  involun- 
tary manslaughter,  A  father  is  informed  on  one  evening  that 
his  son,  a  small  boy,  has  been  wantonly  whipped  by  a  man. 
He  meets  with  the  man  on  the  evening  of  the  next  day,  and 
then  with  his  fists  and  feet  beats  and  stamps  him,  while  he  is 
unresisting,  with  so  much  violence  that  the  man  dies  from  the 
effects  of  the  beating  on  the  next  night.  There  is  evidence  of 
deliberation,  and  the  beating  is  cruelly  severe.     This  is  murder. 

In  trials  for  murder,  the  jury  is  the  proper  tribunal  to  weigh 
the  facts  and  circumstances,  as  well  as  the  testimony  in  the 
case ;  and  the  court  cannot  undertake  to  set  the  verdict  aside 
because  the  jury  have  decided  against  the  evidence,  or  without 
evidence. 

In  Vaidens  Case,  12  Grat.,  717,  decided  May  21, 1855,  it  was 
held :  On  a.  trial  for  murder  the  necessity  relied  on  to  justify 
the  killing  must  not  arise  out  of  the  prisoners  own  miscon- 
duct. 

In  Livingstone's  Case,  14  Grat.,  592,  decided  November  7, 
1857,  it  was  held :  Under  a  common  law  indictment  for  murder, 
the  prisoner  may  be  found  guilty  of  murder  in  the  first  or  second 
degree,  or  manslaughter. 

Upon  a  trial  for  murder,  it  having  been  proved  that  the  pris- 
oner had  beat  the  deceased,  the  complaint  of  the  deceased  of 
pain  suffered  by  her  within  two  hours  of  the  beating,  is  compe- 
tent evidence. 

It  being  proved  that  a  witness  is  a  practicing  physician,  he  is 
a  competent  witness  to  express  an  opinion  as  an  expert  upon  a 
medical  question. 

Upon  a  trial  for  homicide  it  is  competent  for  the  Common- 
wealth to  introduce  physicians  and  surgeons  to  give  their  opin- 
ion on  a  state  of  facts  testified  to  by  themselves  or  other  wit- 
nesses, in  respect  to  a  wound  or  beating  proved  to  have  been 
inflicted  on  the  deceased,  as  to  whether  such  wound  or  beating 


Citations  to  the  Code  of  Virginia.  955 

would  be  a  cause  adequate  to  produce  death,  or  was  the  actual 
cause  of  death. 

In  such  case  the  questions  put  and  the  answers  given  should 
be  so  put  and  given  as  not  to  elicit  or  express  an  opinion  by  the 
physician  or  suriieon  on  the  credit  of  the  witnesses,  or  the  truth 
of  the  facts  testified  to  by  others. 

When  in  a  case  of  homicide  it  appears  that  a  wound  or  beat- 
ing was  inflicted  on  the  deceased  which  was  not  mortal,  and 
the  deceased,  whilst  laboring  under  the  effects  of  the  violence, 
becomes  sick  of  a  disease  not  caused  by  such  violence,  from 
•which  disease  death  ensues  within  a  year  and  a  day,  the  party 
,  charged  with  the  homicide  is  not  criminally  responsible  for  the 
death,  although  it  should  also  appear  that  the  symptoms  of  the 
disease  were  aggravated,  and  the  fatal  progress  quickened  by 
the  enfeebled  or  irritated  condition  of  the  deceased  caused  by 
the  violence. 

In  BulUs  Case,  14  Grat.,  613,  decided  November  10,  1857,  it 
was  held :  In  an  indictment  for  murder  the  omission  of  the 
word  "deliberately"  will  be  fatal  on  general  demurrer. 

On  a  trial  for  murder,  the  Commonwealth,  to  introduce  the 
dying  declarations  of  the  deceased,  proved  that  he  was  told 
that  his  physicians  thought  that  if  he  could  not  be  relieved  of 
the  shortness  of  breath  under  which  he  was  then  suffering  he 
would  die  very  soon.  He  then  made  the  statements  which 
were  proposed  to  be  introduced  as  evidence ;  and  he  was  asked 
if  these  were  made  as  his  dying  declarations,  to  which  he  an- 
swered that  they  were.  The  deceased  was  then  told  that  the 
doctors  were  of  opinion  that  he  was  certainly  dying,  and  that  he 
would  die  very  soon;  and  what  he  had  said  was  repeated  to 
him,  and  he  was  asked  if  he  made  that  statement  again,  and 
did  he  make  it  as  a  dying  declaration;  and  he  said  he  did. 
The  statement  is  admissible  as  a  dying  declaration. 

On  a  trial  for  murder,  when  the  evidence  repelled  the  idea  of 
self-defence,  the  court  instructed  the  jury  that  if  they  believed 
from  the  evidence  that  the  deceased  and  the  prisoner  were  en- 
gaged in  a  sudden  and  mutual  combat,  in  which  no  weapon  dan- 
gerous in  itself  was  used,  and  during  the  progress  of  the  fight  the 
prisoner  struck  the  deceased  an  ordinary  blow  or  blows  with 
his  fists  or  feet,  without  any  intention  either  to  kill  the  de- 
ceased or  to  do  him  great  bodily  harm,  but  to  repel  his  attack, 
and  that  the  death  of  the  deceased  was  caused  thereby  acci- 
dentally and  apart  from  the  prisoner's  intention,  then  the  pri- 
soner is  guilty  of  involuntary  manslaughter.  This  is  not  error. 
In  such  a  case,  the  court  farther  instructs  the  jury  that  though 
no  weapon  dangerous  in  itself  is  used,  but  only  the  fists  and 
feet,  yet  if  the  jury  are  satisfied  from  the  evidence  that  the 
manner  of  inflicting  the  blows  was  cruel  and  unusual,  and  ex- 


956  Citations  to  the  Code  of  Virginia. 

ceeded  in  number  and  violence  what  was  necessary  to  repel  the 
deceased,  and  he  died  of  such  beating,  then  the  prisoner  is 
guilty  of  voluntary  manslaughter.     This  is  not  error. 

In  Bristow's  Case,  15  Grat.,  634,  decided  July,  1859.  De- 
ceased strikes  the  prisoner's  father  with  his  fist,  and  a  fight 
ensues,  when  the  prisoner,  who  sees  it,  comes  up  and  catches 
the  deceased  by  the  collar  of  his  coat  behind,  and  strikes  the 
deceased  from  behind  with  a  pocket  knife,  wounding  him  in  the 
right  side.  The  prisoner,  who  was  about  seventeen  years  old, 
had  lately  left  the  school  of  the  deceased,  and  had  used  lan- 
guage on  more  than  one  occasion  before  the  affray,  and  also 
used  language  after  it,  but  before  it  was  known  the  deceased . 
was  dangerously  wounded,  which  evinced  hostility  to  him.  Held : 
The  killing  is  murder. 

In  BosvjelVs  Case,  20  Grat.,  860,  decided  March,  1871,  it  was 
held :  A  person,  whether  he  be  an  habitual  drinker  or  not,  can- 
not voluntarily  make  himself  so  drunk  as  to  become,  on  that 
account,  irresponsible  fur  his  conduct  during  such  drunkenness. 
He  may  be  perfectly  unconscious  of  what  he  does,  and  yet  he 
is  responsible.  He  may  be  incapable  of  express  malice,  but 
the  law  implies  malice  in  such  a  case  from  the  nature  of  the  in- 
strument used,  the  absence  of  provocation,  and  other  circum- 
stances under  which  it  is  done. 

If  permanent  insanity  is  produced  by  habitual  drunkenness, 
then,  like  any  other  insanity,  it  excuses  an  act  which  would  be 
otherwise  criminal. 

Insanity,  when  it  is  relied  on  as  a  defence  to  a  charge  of  crime, 
must  be  proved  to  the  satisfaction  of  the  jury  to  entitle  the  ac- 
cused to  an  acquittal  on  that  ground.  If,  upon  the  whole  evi- 
dence, the  jury  believe  he  was  insane  when  he  committed  the 
act,  they  will  acquit  him  on  that  ground,  but  not  upon  any 
fanciful  ground,  that  though  they  believe  he  was  sane,  yet  as 
there  may  be  a  rational  doubt  of  such  sanity,  he  is  therefore 
entitled  to  acquittal. 

If  a  person  kill  another  without  provocation  and  through 
reckless  wickedness  of  heart,  but,  at  the  time  of  doing  so,  his 
condition  from  intoxication  was  such  as  to  render  him  incapable 
of  doing  a  wilful,  deliberate,  and  premeditated  act,  he  is  guilty 
of  murder  in  the  second  degree. 

In  Bock's  Case,  21  Grat.,  909,  decided  January  31,  1872,  it 
was  held:  On  a  trial  for  murder  it  is  not  competent  for  the 
Commonwealth  to  introduce  evidence  in  chief  as  to  the  char- 
acter of  the  person  on  whom  the  offence  was  committed.  If 
the  prisoner,  in  execution  of  a  malicious  purpose  to  do  the  de- 
ceased a  serious  personal  injury  or  hurt  by  wounding  and  beat- 
ing him,  killed  him,  the  offence  is  murder. 

In  Bead's  Case,  22  Grat.,  924,  decided  December  11,  1872,  it 


Citations  to  the  Code  of  Virginia.  957 

■was  held :  Every  unlawful  homicide  must  be  either  murder  or 
manslaughter,  and  whether  it  be  the  one  or  the  other  depends 
alone  upon  whether  the  party  who  perpetrated  the  act  did  it 
with  malice  or  not,  malice  either  express  or  implied.  Where 
there  has  been  a  previous  grudge,  and  also  an  immediate  provo- 
cation, it  is  for  the  jury  to  determine  whether  the  shooting  was 
induced  by  the  previous  grudge  or  the  immediate  provocation, 
and  it  is  not  for  an  appellate  court  to  reverse  their  judgment, 
which  the  judge  who  tried  the  case  declines  to  set  aside. 

In  Stoneinaiis  Case,  25  Grat.,  887,  decided  June,  1874,  it  was 
held:  On  the  trial  of  S.  for  the  murder  of  E.,  the  Common- 
wealth having  shown  that  E.  and  O.,  the  sister  of  S.,  had  been 
married,  the  prisoner  may  introduce  in  evidence  the  decree  in  a 
suit  by  O.  against  E.  for  a  divorce,  either  to  render  O.  compe- 
tent as  a  witness  for  him,  or  to  show  that  E.,  being  no  longer  the 
husband  of  O.,  was  a  mere  intruder  upon  the  prisoner's  family. 
But  the  pleadings  and  depositions  are  not  admissible  as  evi- 
dence for  such  other  purpose. 

An  objection  to  a  question  asked  and  to  the  witness  answer- 
ing it,  is  overruled,  and  an  exception  taken,  which  does  not  state 
the  answer;  the  appellate  court  cannot  consider  it. 

On  the  trial  of  S.  for  the  murder  of  E.,  if  S.  shot  E.  under  a 
reasonable  apprehension  that  his  own  life  or  that  of  some  mem- 
ber of  the  family  was  in  imminent  danger,  or  under  a  reason- 
able apprehension  that  the  deceased  intended  to  bum  the 
dwelling-house  of  his  mother,  or  commit  some  other  known  fel- 
ony, and  that  there  was  imminent  danger  of  such  design  being 
carried  into  execution,  he  is  justified  in  so  doing,  though  such 
danger  was  unreal. 

The  bare  fear  that  a  man  will  commit  murder  or  other  atro- 
cious felony,  however  well  grounded,  unaccompanied  by  an 
overt  act  indicative  of  any  such  intention,  will  not  warrant  the 
killing  of  the  party  by  way  of  prevention.  There  must  be  some 
overt  act  indicative  of  imminent  danger  at  the  time. 

There  must  be  some  act  of  the  deceased  meaning  present 
peril,  or  something  in  the  attending  circumstances  indicative  of  a 
present  purpose  to  make  the  apprehended  attack.  This  act  so 
done,  or  circumstances  thus  existing,  must  be  of  such  a  character 
as  to  afford  a  reasonable  ground  for  believing  there  is  a  design 
to  commit  a  felony,  or  to  do  some  serious  bodily  harm,  and  im- 
minent danger  of  carrying  such  design  into  immediate  execu- 
tion. Then  the  killing  will  be  justifiable,  though  there  was  in 
fact  no  such  design  by  the  deceased. 

If  an  instruction  correctly  expounds  the  law,  and  is  expressed 
in  terms  familiar  to  the  books,  and  well  understood  by  the  judi- 
cial mind,  and  especially  if  the  jury  or  the  counsel  do  not  ask 
for  an  explanation  of  it,  the  appellate  court  will  not  set  the  ver- 


958  Citations  to  the  Code  of  Vikginia. 

diet  aside,  because  its  true  import  and  meaning  possibly  may 
not  have  been  comprehended  by  the  jury. 

In  HowelVs  Case,  26  Grat.,  995,  decided  December  16,  1875, 
it  was  held :  The  jury  having  found  the  prisoner  guilty  of  mur- 
der in  the  first  degree,  and  the  court  of  trial  having  refused  to 
set  aside  the  verdict  and  grant  a  new  trial,  the  appellate  court, 
even  if  they  had  some  doubt  about  the  sufficiency  of  the  evi- 
dence to  convict  the  prisoner  of  murder  in  the  first  degree,  would 
not  reverse  the  judgment. 

Murder  committed  by  any  of  the  specific  means  enumerated 
in  the  statute  is  murder  in  the  first  degree,  whether  there  was 
any  actual  intent  to  kill  or  not. 

In  Willis's  Case,  32  Grat.,  929,  decided  November,  1879,  it  was 
held :  All  homicide  is  presumed  to  be  murder  in  the  second  de- 
gree. In  order  to  elevate  the  oflfence  to  murder  in  the  first  de- 
gree, the  burden  is  on  the  Commonwealth ;  and  to  reduce  it  to 
manslaughter,  the  burden  is  on  the  prisoner. 

WhUst  voluntary  intoxication  is  no  defence  to  the  fact  of 
guilt,  yet  where  the  question  of  intent  or  premeditation  is  in- 
volved, evidence  of  it  is  admissible  for  the  purpose  of  determin- 
ing the  precise  degree  of  the  crime.  And  in  all  cases  where  the 
question  is  between  murder  in  the  first  degree  and  second  degree, 
the  fact  of  the  prisoner's  drunkenness  may  be  proved  to  shed  light 
on  his  mental  status,  and  thereby  enable  the  jury  to  determine 
whether  the  killing  was  from  a  premeditated  purpose  or  from 
passion,  excited  by  inadequate  provocation.  But  caution  is 
necessary  in  the  application  of  this  doctrine,  as  there  may  be 
many  cases  of  premeditated  murder  in  which  the  prisoner  pre- 
viously nerves  himself  for  the  deed  by  liquor.  In  such  cases  as 
these,  drunkenness  is  entitled  to  no  consideration  in  favor  of  the 
prisoner  in  determining  the  degree  of  his  crime,  but  on  the  con- 
trary tends  to  elevate  the  offence  to  murder  in  the  first  de- 
gree. 

In  MitchelVs  Case,  33  Grat.,  845,  decided  March,  1880.  M. 
and  two  others  are  indicted  for  murder  in  the  County  Court  of 
L.,  and  upon  their  arraignment  they  elect  to  be  tried  in  the 
circuit  court.  A  writ  of  venii'e  is  issued  by  the  county  court 
for  the  summoning  of  a  jury  returnable  to  the  circuit  court,  and 
the  twenty-four  men  selected  by  the  county  court  are  summoned 
to  the  circuit  court.  On  the  motion  of  the  prisoner  the  venire 
is  quashed  by  the  circuit  court,  and  the  court  directs  another 
venire  of  twenty-four  to  be  summoned,  and  names  the  twenty- 
four  summoned  on  the  first  venire.  Held:  The  directing  the 
same  twenty-four  men  to  be  summoned  is  not  error. 

Upon  the  trial  of  a  prisoner  for  murder  he  twice  makes  a 
confession,  both  of  which  are  admitted  in  evidence.  There  is 
very  little  doubt  that  the  first  confession  was  made  without  any 


Citations  to  the  Code  of  Virginia.  959 

promise  or  threat  to  induce  it,  and  there  is  no  doubt  the  last 
was  so  made.     Held :  The  evidence  is  admissible. 

In  MitchelVs  Case,  33  Grat.,  872,  decided  March,  1880,  it  was 
held :  There  was  no  doubt  but  what  the  prisoner  intended  to 
kill  the  deceased,  and  that  he  struck  the  fatal  blow  when  the 
deceased  was  endeavoring  to  escape  from  him,  and  the  blow 
was  on  the  back  of  the  head,  and  the  only  questions  were, 
whether  the  striking  of  the  prisoner  with  a  heavy  stick  to  resent 
an  insult  offered  him  was  a  sufficient  provocation  to  justify  the 
killing  of  the  deceased  in  the  manner  in  which  it  was  done,  and 
whether  the  prisoner  did  not  provoke  the  attack  upon  himself 
that  he  might  have  an  excuse  for  kilUng  the  deceased.  And  the 
jury  having  found  the  prisoner  guilty  of  murder  in  the  first 
degree,  and  the  county  judge  who  presided  at  the  trial,  and  the 
judge  of  the  circuit  court  of  the  county  having  refused  to  grant 
a  new  trial,  this  court,  seeing  there  is  evidence  to  warrant  the 
verdict,  will  not  set  it  aside. 

Upon  the  evidence  in  this  case,  three  persons  go  together  to 
rob  a  store.  One,  M.,  is  posted  some  distance  from  the  house 
to  watch,  and  the  other  two  obtain  admittance  into  the  store- 
house, kill  the  owner  and  rob  the  store,  and  M.  shares  the  booty. 
Held :  M.  is  principal  in  the  first  degree  of  the  crime  of  murder, 
and  may  be  punished  with  death. 

In  Wright's  Case,  33  Grat.,  880,  decided  July,  1880,  it  was 
held :  To  constitute  a  wilful,  deliberate,  and  premeditated  killing, 
constituting  murder  in  the  first  degree,  it  is  not  necessary  that 
an  intention  to  kill  should  exist  for  any  particular  length  of 
time  prior  to  the  actual  killing,  it  is  only  necessary  that  said  in- 
tention should  come  into  existence  for  the  first  time  at  the  time 
of  such  killing,  or  any  time  previously. 

In  Dejamette's  Case,  75  Va.,  867,  decided  January,  1881. 
"Where  the  defence  in  a  trial  for  murder  is  insanity,  it  is  com- 
petent to  ask  a  medical  expert  such  a  question  as  this :  Suppose 
a  man  had  inherited  a  predisposition  to  insanity,  would  great 
mental  anxiety,  loss  of  property  or  the  honor  of  one's  family, 
and  losses  of  other  kind  be  likely  to  develop  the  disease? 
Whilst  the  mere  fact  that  the  presiding  judge  in  the  trying 
court  on  his  own  motion  charges  the  jury  on  the  law  of  the 
case,  if  done  correctly,  is  no  ground  for  reversing  the  judgment, 
yet  such  is  not  the  practice  in  Virginia,  and  is  not  desirable 
that  it  should  become  so. 

Malice  being  a  necessary  ingredient  in  the  crime  of  murder, 
the  law  infers  it  wherever  the  killing  is  deliberate  and  premedi- 
tated, and  it  would  therefore  be  error  to  instruct  the  jury  that 
they  must  believe  the  killing  was  malicious,  deUberate  and  pre- 
meditated. 

In   Wrighes  Case,  75  Va.,  914,  decided  January,  1882.     A 


960  Citations  to  the  Code  op  Virginia. 

fight  was  going  on  outside  of  a  bar-room  in  which  prisoner  was, 
between  the  grandfather  of  the  prisoner  and  two  others ;  a  good 
many  other  persons  were  standing  around  but  not  engaged  in 
the  fight.  Prisoner,  on  hearing  of  the  fight,  seized  a  large  stick, 
ran  out  into  the  crowd,  striking  several  persons  with  it,  breaking 
the  arm  of  one,  and  struck  one  person  who  was  not  engaged  in 
it,  or  noticing  the  fight,  a  blow  on  the  head  from  which  he  died 
the  next  day.     Held :  Guilty  of  murder  in  the  first  degree. 

The  premeditated  design  to  kill  need  not  have  existed  for  any 
length  of  time,  but  if  the  design  at  the  time  of  killing  was  then 
formed,  and  the  killing  was  done  without  provocation  then  or 
recently  received,  it  is  murder  in  the  first  degree, 

HatcJietCs  Case,  7b  Va.,  1026.  Criminal  Proceedings. — Murder 
by  Poison. — To  entitle  the  Commonwealth  to  a  verdict,  it  is 
essential  to  prove  clearly,  beyond  a  reasonable  doubt,  these 
three  essential  propositions,  viz. : 

1.  That  the  deceased  came  to  his  death  by  poison. 

2.  That  the  poison  was  administered  by  the  accused. 

3.  That  he  administered  it  knowingly  and  feloniously. 
Idem. — Idem  case  at  bar.     H.  is  indicted  for  the  murder  of 

Z.  by  poison.  There  was  lao  post-mortein  and  no  analysis  of 
the  contents  of  the  deceased's  stomach,  or  of  the  vessel  which 
contained  the  liquor  administered,  or  sufficient  proof  that  the 
accused  administered  it,  or  that  he  knew  it  contained  poison ; 
and  that  there  was  any  motive  or  provocation  for  the  deed. 
Held :  The  verdict  must  be  set  aside  and  new  trial  granted  the 
accused. 

In  McDanieVs  Case,  11  Va.,  281,  decided  March  15,  1883. 
Much  caution  is  used  by  this  court  in  granting  a  new  trial, 
where  it  is  asked  on  the  ground  that  the  verdict  is  contrary  to 
evidence,  great  weight  being  given  to  the  verdict  of  the  jury. 

To  constitute  this  offence  the  killing  must  be  predetermined, 
and  not  under  momentary  impulse  of  passion ;  though  the  de- 
termination may  not  have  existed  any  particular  length  of  time. 
Prima  facie^  all  homicide  is  murder  in  the  second  degree. 
Onus  on  prosecution  to  raise  the  offence  to  the  first  degree.  A 
quarrel  occurred  between  prisoner  and  deceased.  Former  gave 
the  latter  the  lie.  They  separated.  Twenty  minutes  later  de- 
ceased, with  light  walking  stick  approached  prisoner,  saying 
that  he  would  not  stand  what  prisoner  had  said.  Prisoner 
picked  up  a  "bearing  stick."  Deceased  asked  "why  he  stood 
holding  that  stick?"  Prisoner  answered,  "If  you  come  here  I 
will  show  you."  Prisoner  raised  his  cane  to  parry  a  blow  from 
the  prisoner,  and  may  be,  struck  at,  or  struck  the  prisoner,  who 
then  struck  the  prisoner  two  blows  with  the  "  bearing  stick," 
from  which  he  died  in  about  two  hours.  Held :  The  presump- 
tion is  not  warranted  from  the  mere  use  of  that  weapon,  without 


Citations  to  the  Code  of  Virginia.  961 

any  words  or  circumstances,  other  than  those  mentioned,  tend- 
ing to  show  the  prisoner's  intent,  that  such  intent  was  not  to 
repel  an  attack  or  to  inflict  bodily  harm,  but  to  kill.  The  facts, 
do  not  prove  murder  in  the  first  degree. 

In  Lewis's  Case,  78  Ya.,  732,  decided  April  24,  1884,  it  waa 
held :  Malice  is  presumed  from  the  fact  of  killing  unaccom- 
panied with  circumstances  of  extenuation,  and  the  burden  of 
disproving  malice  is  upon  the  accused.  Every  man  is  presumed 
to  intend  the  natural  and  probable  consequences  of  his  own  acts. 

The  necessity  relied  on  to  justify  the  killing  must  not  arise 
out  of  the  prisoner's  own  misconduct. 

Threats  by  deceased  to  prisoner,  directly  or  through  others,  are 
admistiible  to  determine  whether  the  prisoner  had  at  the  time  of 
the  killing  reasonable  ground  to  apprehend  serious  bodily  harm. 

In  Harrison's  Case,  79  Va.,  374,  decided  September  18,  1884, 
it  was  held :  Murder  is  where  a  man  of  sound  sense  unlawfully 
killeth  another  of  malice  aforethought,  either  express  or  im- 
plied. If  express,  the  facts  remain  with  the  jury.  If  it  is  to 
arise  from  implication,  it  is  a  matter  of  law,  the  entire  considn. 
eration  whereof  resides  with  the  court. 

It  must  be  presumed  that  a  man  intends  what  is  the  natural 
and  necessary  consequence  of  his  own  acts.  Where  a  case  of 
self-defence  has  been  prima  facie  made  out,  evidence  of  the 
dangerous  character  of  deceased  is  admissible.  It  is  no  pallia- 
tion that  prisoner  believed  the  man  he  attacks  and  kills  to  be  a 
dangerous  person,  and  in  such  case  such  evidence  is  inadmis- 
sible. Where  such  evidence  is  admissible  the  proof  must  be  of 
the  deceased's  general  reputation  as  a  dangerous  person,  and 
not  of  the  opinion  of  a  particular  individual. 

Barbour's  Case,  80  Va.,  287,  decided  March  12,  1885,  is  a, 
case  in  which  the  killing  was  held  to  be  murder  in  the  first 
degree,  but  it  is  of  so  wilful  a  character  that  it  is  not  necessary 
as  an  authority. 

In  ParrisKs  Case^  81  Va,,  1,  decided  November  28,  1884,  it 
was  held :  Where  one  in  defence  of  his  person,  habitation  or 
property  kills  another,  who  manifestly  intends  and  endeavors 
by  violence  or  surprise  to  commit  a  forcible  or  atrocious  felony 
upon  either,  such  killing  is  justifiable  homicide;  and  in  such 
case  the  justification  of  the  prisoner  must  depend  on  the  cir- 
cumstances as  they  appear  to  him. 

In  Honesty's  Case,  81  Va.,  283,  decided  January  7,  1886,  it 
was  held :  An  instruction  otherwise  right  will  not  be  vitiated  by 
a  conclusion  in  the  words  following:  "And  if  there  be  a  rea- 
sonable doubt  whether  the  prisoner  had  mlled,  deliberated  and 
premeditated  to  kill  the  deceased,  or  to  do  him  some  serious  in- 
jury which  would  probably  occasion  his  death,  the  jury  ought 
not  to  find  him  guilty  of  murder  in  the  first  degree." 

61 


962  Citations  to  the  Code  of  Virginia. 

The  necessity  relied  on  to  justify  killing  must  not  arise  out  of 
prisoner's  own  misconduct. 

Provocation  sought,  or  involuntarily  provoked,  cannot  excuse 
killing  or  doing  bodily  harm.  No  provocation  whatever  can 
render  homicide  justifiable,  or  even  excusable.  The  lowest  grade 
to  which  it  can  reduce  homicide  is  manslaughter. 

If  a  man  kill  another  suddenly,  without  any,  or  without  a 
considerable,  provocation,  the  law  implies  malice,  and  the  homi- 
cide is  murder. 

The  o)ius  rests  on  accused  to  prove,  if  he  relies  on  intoxica- 
tion as  a  defence,  that  when  he  committed  the  offence  his  con- 
dition from  intoxication  was  such  as  to  render  him  incapable  of 
doing  a  wilful,  deliberate  and  premeditated  act.  And  so  of  in- 
sanity.    Both  must  be  proved  as  independent  facts. 

The  facts  disclosed  by  the  record  here  show  a  homicide  com- 
mitted deliberately  with  a  deadly  weapon,  where  the  law  im- 
plies the  malice  requisite  for  murder  in  the  first  degree,  a  man 
being  presumed  to  intend  the  natural  and  probable  consequences 
of  his  own  act. 

In  Lewis's  Case,  81  Va.,  416,  decided  February  4,  1886,  it 
was  held :  The  well-settled  rule  of  this  court  in  granting  new 
trials,  when  asked,  for  on  the  sole  ground  that  the  verdict  is 
contrary  to  the  evidence,  is  to  grant  them  very  cautiously,  and 
only  when  the  verdict  is  manifestly  wrong,  great  weight  being 
due  to  a  verdict  rendered  by  a  jury  and  approved  by  a  judge, 
before  whom  the  witnesses  gave  their  evidence. 

In  Tucker's  Case,  88  Va.,  20,  decided  June  18,  1891.  The  ac- 
cused and  the  deceased  had  long  been  inimical,  and  had  made 
frequent  threats  to  kill  one  another.  Pn  the  day  of  the  homi- 
cide both  were  seen  going  toward  an  orchard,  a  part  whereof 
each  possessed.  The  former,  with  his  gun,  two  children,  aged 
ten  and  twelve  years  respectively,  a  horse  and  sled,  was  going 
for  apples.  The  latter,  also  with  his  gun,  followed  at  no  great 
distance,  and  a  few  hours  later  was  found  near  the  fence  of  the 
orchard  dead,  with  his  head  crushed  and  his  back  pierced  by  a 
bullet.  A  Commonwealth's  witness  testified  that  on  that  day, 
from  mountains  three-quarters  of  a  mile  .off,  he  heard  accused's 
voice  swearing,  etc.,  in  the  orchard,  saw  smoke  arise,  heard  re- 
port of  gun,  and  later  heard  a  second  report,  and  immediately 
a  man  ran  and  disappeared  in  the  orchard.  The  children  for 
the  defence  testified  that  they  were  with  the  accused :  that  he 
did  not  shoot,  but  that  some  unseen  person  fired  twice  at  him, 
one  ball  passing  through  his  hat,  the  other  through  his  shirt ; 
that  he  did  not  hear  of  the  homicide  for  several  hours,  and  be- 
fore hearing  of  it  had  started  for  a  warrant  to  arrest  deceased. 
Held :  Evidence  insufficient  to  warrant  the  verdict  of  guilty  of 
murder  in  the  second  degree,  and  a  new  trial  should  have  been 
granted  the  accused. 


Citations  to  the  Code  of  Virginia.  963 

In  Hash's  Case,  88  Va.,  172,  decided  July  2,  1891,  it  was 
held :  A  motion  to  quash  a  joint  indictment  against  two  persons, 
on  the  ground  of  omission  to  insert  the  copulative  conjunction 
**and"  between  their  names,  is  properly  overruled  where  a 
■comma  is  placed  after  the  first  name. 

On  an  instruction  that  a  man  cannot  in  any  case  justify  the 
killing  of  another  upon  the  pretense  of  self-defence,  unless  he 
be  without  fault  in  bringing  upon  himself  the  necessity  of  so 
doing,  held:  Improper,  because  the  word  "pretense"  implies 
groundlessness,  and  is  calculated  to  prejudice  the  jury  against 
the  theory  of  necessary  self-defence,  relied  on  by  the  accused. 
The  word  "plea"  should  have  been  used  instead  of  "pretense"; 
and  because  the  true  doctrine  is  that,  although  the  slayer  pro- 
voked the  combat  or  produced  the  occasion,  yet,  if  it  be  done 
without  any  felonious  intent,  intending,  for  instance,  merely  an 
ordinary  battery  or  trespass,  the  accused  may  avail  himself  of 
the  plea  of  self-defence. 

Where  the  accused  had  built  a  fence  upon  the  line  between 
his  land  and  that  of  the  deceased,  and  it  had  been  so  used  for  a 
number  of  years,  and  the  deceased  had  notified  the  accused  not 
to  remove  it,  the  removal  thereof  would  be  nothing  more  than 
a  trespass.  But  if  the  fence  had  been  built  by  the  accused  on 
his  own  land,  such  removal  would  not  be  a  tortious  act  at  all. 
And  in  either  event,  if,  to  prevent  such  removal,  the  deceased 
.had  made  an  attack  upon  the  accused  with  a  deadly  weapon, 
under  circumstances  calculated  to  excite  in  the  latter's  mind  a 
reasonable  apprehension  of  death  or  of  great  bodily  injury  to 
himself,  under  which  he  kills  his  assailant,  he  is  entitled  to 
avail  himself  of  the  plea  of  self-defence.  An  instruction  to  the 
contrary.     Held  erroneous. 

In  Davis's  Case,  89  Va.,  132,  decided  June  23,  1892,  it  was 
held :  Accused  met  in  the  street  his  wife,  from  whom  he  had  been 
for  some  time  separated ;  becoming  enraged,  began  firing  at  her 
as  she  ran  into  a  house.  He  fired  at  her  and  another  there, 
when  she  ran  out  by  a  side  door.  He,  returning  to  the  street, 
attempted  to  reload,  succeeded  after  interference  in  getting  one 
cartridge  in,  when  deceased,  whom  he  knew  to  be  a  policeman, 
arrested  him,  and  was  shot  by  him,  and  died  in  four  days.  Ac- 
cused was  not  drank,  but  was  drinking.  Held :  Conviction  of 
murder  in  the  first  degree  should  not  be  disturbed. 

In  Tilley's  Case,  89  Va.,  136,  decided  June  23,  1892.  Priso- 
ner and  deceased,  his  mistress,  left  their  companions  in  the  pub- 
lic road  in  the  afternoon  and  disappeared  in  the  woods.  She 
had  about  thirty  dollars  (part  silver)  in  a  purse.  She  was  never 
seen  alive  afterwards.  An  hour  later  he  was  seen  where  the 
body  was  found,  and  avoided  recognition.  He  left  the  State 
that  night  and  did  not  return  for  several  years.     Her  body  was 


964  Citations  to  the  Code  of  Yieginia. 

found  in  a  secluded  place  in  the  woods,  partly  consumed  by  fire^ 
with  a  bullet  hole  in  her  head,  such  as  would  be  made  by  a  ball 
from  the  pistol  then  in  his  possession.  The  coin  and  purse 
could  not  be  found.  He  gave  a  false  name  at  the  place  he 
stayed  that  night,  and  when  arrested  several  years  afterwards. 
Held :  The  verdict  "  guilty  of  murder  in  the  first  degree  "  should 
not  be  disturbed,  as  the  circumstances  show  that  robbery  was 
the  motive  of  the  homicide. 

The  Commonwealth  was  properly  allowed  to  prove  as  part  of 
the  res  gestae  that  on  the  day  of  her  death  the  deceased  was  on 
her  way  to  a  neighbor's  house  near  where  her  bodv  was  found. 

In  HalUs  C<ise,  89  Va.,  171,  decided  June  23,  1892,  it  was 
held :  Shortly  after  being  shot  the  deceased  said  to  his  wife,  it  is 
a  death  shot  this  time,  and  that  he  wanted  to  go  to  heaven 
when  he  died,  but  did  not  express  belief  that  he  was  going  to 
die.  To  others  he  told  who  shot  him,  and  the  circumstances, 
but  he  did  not  say  anything  about  dying.  He  died  twenty- 
four  hours  after  being  shot.  Held :  His  declarations  were  admis- 
sible as  evidence. 

Instructions  unsupported  by  any  evidence  should  be  refused. 

Instructions  having  been  given  to  the  jury  that  they  could  not 
find  prisoner  guilty  of  murder  in  the  first  degree,  unless  the  evi- 
dence showed  him  guilty  "to  the  exclusion  of  all  reasonable 
doubt,"  and  the  jury  having  found  him  guilty  of  murder  in  the 
first  degree,  held :  The  prisoner  should  not  have  been  preju- 
diced by  the  refusal  of  the  court  to  instruct  the  jury  that  "the 
evidence  of  his  guilt  must  be  so  strong  as  to  exclude  every  rea- 
sonable hypothesis  of  his  innocence,"  and  that  "mere  suspicion, 
however  strong,  is  not  suflScient" ;  the  law  requires  proof  to  the 
exclusion  of  everv  reasonable  doubt. 

In  Field's  Case,  89  Va.,  690,  decided  February  16,  1893,  it 
was  held:  A  man  is  not  justifiable  in  shooting  another  when 
there  is  a  mere  justifiable  apprehension  of  immediate  danger,  no 
matter  how  sincere  such  apprehension  may  be ;  but  there  must 
be  honest  and  reasonable  belief  of  such  danger,  that  is  to  say, 
the  act  done,  or  circumstances  existing,  must  be  of  such  a  char- 
acter as  to  afford  reasonable  ground  for  believing  there  is  a  de- 
sign to  commit  a  felony,  or  to  do  some  serious  bodily  harm,  and 
imminent  danger  of  such  design  being  carried  into  immediate 
execution. 

In  Snodgrass's  Case,  89  Va.,  679,  decided  February  16,  1893. 
Accused  deliberately  raised  a  pistol  under  arm  of  a  witness  and 
shot  the  deceased.  Several  hours  before,  he  made  threats  to 
shoot  deceased  before  sun-down,  and  talked  angrily  with  him 
several  times  during  the  day,  and  flourished  a  pistol  as  if  threat- 
ening him.  Held :  A  verdict  of  murder  in  the  second  degree 
is  fully  warranted  by  the  evidence. 


Citations  to  the  Code  of  Vieginia.  965 

Evidence  of  threats  of  the  accused  before,  and  threats  to  and 
assault  upon  a  witness  after,  the  shooting  is  admissible  to  prove 
the  demeanor  of  accused  as  indicating  his  anirrms. 

Section  3664. 

The  reference  to  2  Va.  Cases,  78,  is  not  in  point. 

For  81  Va.  416,  see  Lewis's  Case,  cited  ante,  Section  3662. 

In  Shipp's  Case,  86  Va.,  746,  decided  March  27,  1890,  it  was 
held:  Prisoner,  after  altercation  with  deceased,  declared  he 
would  shoot  him  if  caught  off  his  land ;  met  him  soon  after,  ac- 
cused him  of  slander,  and  aimed  a  gun  at  him ;  and  when  de- 
ceased, unable  to  retreat,  picked  up  an  iron  pipe  for  self-defence, 
prisoner  shot  and  killed  him.  Held :  Evidence  warrants  the  ver- 
dict of  guilty  of  murder  in  the  second  degree. 

Section  3665. 

For  the  reference  to  3  Grat.,  594,  see  Mc  Whirfs  Case,  cited 
ante.  Section  3662. 

For  the  reference  to  14  Grat.,  613,  see  Bull's  Case,  cited  ante. 
Section  3662. 

In  Bock's  Case,  21  Grat.,  909,  decided  January  31,  1872,  it 
was  held:  Where  death  ensues  on  a  sudden  provocation  or  a 
sudden  quarrel,  without  malice  prepense,  the  killing  is  man- 
slaughter, and  in  order  to  reduce  the  offence  to  killing  in  self- 
defence  the  prisoner  must  prove  two  things :  First,  that  before 
the  mortal  blow  was  given  he  declined  further  combat,  and  re- 
treated as  far  as  he  could  with  safety ;  and  secondly,  he  killed 
the  deceased  through  the  necessity  of  preserving  li^  own  life, 
or  to  save  himself  from  great  bodily  harm. 

For  the  reference  to  22  Grat.,  924,  see  Read^s  Case,  cited  ante^ 
Section  3662. 

The  reference  to  33  Grat.,  757,  is  an  error. 

Section  3671. 

In  Chappie's  Case,  1  Va.  Cases,  184,  decided  by  the  General 
Oourt,  it  was  held:  This  section  applies  to  the  stabbing  of  a 
slave  as  well  as  to  a  free  person. 

In  Trimble's  Case,  2  Va.  Cases,  143,  decided  November,  1818, 
by  the  General  Court,  it  was  held :  In  an  indictment  for  mali- 
cious and  voluntary  shooting,  the  term  wilfully  being  used  for 
voluntary  is  cured  by  the  statute  of  jeofails.  A  conclusion 
against  the  acts  of  the  General  Assembly,  where  there  is  but  one 
act,  is  also  cured. 

The  omission  to  state  that  the  grand  jury  was  impaneled  in 
the  superior  court  of  the  county  (the  county  itself  being  men- 
tioned), if  an  error,  is  also  ciu'ed. 

An  indictment  for  malicious  shooting  ought  to  charge  that  it 


966  Citations  to  the  Code  of  Virginia. 

was  done  feloniously,  and  this  under  the  act  of  1817,  which 
does  not  in  terms  declare  it  a  felony,  but  makes  it  punishable 
with  penitentiary  confinement. 

In  Lester's  Case,  2  Va.  Cases,  198,  decided  by  the  General 
Court,  June,  1820,  it  was  held :  An  indictment  which  charge* 
that  a  prisoner  feloniously  did  break  the  jawbone  of  another 
with  intent  to  maim,  disfigure,  disable  or  kill,  and  concludes 
against  the  form  of  the  statute,  is  yet  not  a  good  indictment 
under  the  statute,  because  it  does  not  aver  that  he  did  disable 
any  limb  or  member,  but  only  that  he  did  break  a  bone  with 
intent  to  disable. 

If  the  prisoner  be  charged  with  feloniously  breaking  the  jaw- 
bone of  another,  contra  fornam  statuti,  the  indictment  cannot 
be  sustained  as  one  for  mayhem  at  common  law,  because  a 
mayhem  at  common  law,  with  one  exception  only,  is  not  a  felony. 

In  AngeVs  Case,  2  Va.  Cases  231,  decided  by  the  General 
Court,  November,  1820,  it  was  held:  Although  the  statute 
against  unlawful  shooting,  etc.,  fixes  a  penalty  when  the  act  is 
done  with  intent  to  maim,  disfigure,  disable  or  kill  (in  the  dis- 
junctive), yet  the  indictment  should  charge  the  intents  conjunc- 
tively. 

Although  all  of  the  intents  be  laid,  yet  proof  of  either  sup- 
ports the  indictment. 

The  reference  to  2  Va.  Cases,  273,  is  error,  as  the  only  point 
decided  there  relates  to  the  validity  of  plea  of  auterfoits  acquit. 

In  Derieux's  Case,  2  Va.  Cases,  379,  decided  November,  1823, 
by  the  General  Court,  it  was  held :  The  record  of  the  examin- 
ing court  shows  that  the  prisoner  was  charged  with  a  felonious 
stabbing,  with  intent  to  kill.  The  indictment  contained  four 
counts,  of  which  the  first  charged  a  malicious  stabbing  with  in- 
tent to  kill ;  the  second,  a  malicious  stabbing  with  intent  to 
maim,  disfigure  and  disable ;  the  third  and  fourth,  an  unlawful 
stabbing  with  the  same  intents  respectively. 

This  variance  between  the  record  of  the  examining  court  and 
the  indictment  is  no  ground  for  quashing  the  latter.  If  an  in- 
dictment charge  that  one  feloniously  did  strike,  cut  and  stab 
another,  with  intent  to  kill,  etc.,  although  the  words  strike  and 
cut  are  not  in  the  statute,  yet  the  indictment  ought  not  to  be 
quashed,  "  because  of  the  commixture  of  misdemeanor  and 
felony"  contained  therein.  Those  words  may  be  rejected  as  sur- 
plusage. 

In  Woodson's  Case,  9  Leigh,  669,  decided  by  the  General 
Court  December,  1839,  it  was  held :  An  indictment,  charging 
that  the  prisoner  "  at  the  county,  and  within  the  jurisdiction  of 
this  court,  feloniously  and  maliciously  did  stab  one  P.  T.,  with 
intention  to  maim,  etc.,  and  kill  him,"  will  not  be  quashed,  upon 
objection  that  it  does  not  allege  any  assault,  striking  or  wound- 


Citations  to  the  Code  of  Virginia.  967 

ing,  nor  that  P.  T.  was  within  the  county  or  jurisdiction,  nor 
that  the  intent  was  felonious  or  malicious. 

In  Canada's  Case,  22  Grat.,  899,  decided  November  27,  1872. 
C.  is  indicted  for  feloniously  and  maliciously  cutting,  striking, 
wounding,  etc.,  H.,  with  intent  to  maim,  disfigure,  disable  and  kill. 
The  indictment  charges  that  C.  made  an  assault  upon  H.,  and 
feloniously,  etc.  The  jury  find  the  prisoner  not  guilty  of  the 
malicious  cutting  and  wounding  as  charged  in  the  indictment, 
but  guilty  of  an  assault  and  battery  as  charged  in  the  within  in- 
dictment, and  assess  his  fine  at  five  hundred  dollars.  Held: 
This  is  an  acquittal  of  the  prisoner  of  the  felony  charged, 
whether  of  the  "malicious"  or  "unlawful"  cutting,  etc.,  with 
intent  to  maim,  etc.,  and  it  is  a  conviction  for  the  misdemeanor 
of  assault  and  battery. 

Though  the  indictment  only  uses  the  word  malicious,  the  jury 
might  have  found  the  prisoner  guilty  of  the  unlawful  cutting, 
etc.,  with  intent,  etc.  Though  the  indictment  is  for  a  felony, 
the  assault  and  battery  being  charged  in  it,  the  prisoner  may 
be  acquitted  of  the  felony,  and  convicted  of  the  misdemeanor, 
and  the  jury  may  assess  a  pecuniary  fine  upon  him,  but  not  im- 
prisonment. Upon  such  conviction  the  court  may  sentence  the 
prisoner  to  be  imprisoned  in  the  county  jail  in  addition  to  the 
pecuniary  fine. 

In  Head's  Case,  22  Grat.,  924,  decided  December  11,  1872,  it 
was  held :  Whether  a  prisoner  on  trial  is  guilty  of  malicious 
shooting  with  intent  to  kill  depends  upon  the  question.  Whether, 
if  he  had  killed  the  person  at  whom  he  shot,  instead  of  only 
wounding  him  with  intent  to  kill  him,  the  offence  would  have 
been  murder? 

If  the  killing  would  not  have  been  murder,  then  he  is  not 
guilty  of  the  offence  of  malicious  shooting,  however  he  may 
have  been  guilty  of  another  offence,  as  of  unlawful  shooting 
with  intent  to  kill. 

In  Murpheys  Case,  23  Grat.,  960,  decided  March,  1873,  it  was 
held:  Malice  may  be  inferred  from  the  deliberate  use  of  a 
deadly  weapon,  in  the  absence  of  proof  to  the  contrary. 

In  RandaWs  Case,  24  Grat.,  644,  decided  January,  1874,  it 
was  held :  Upon  an  indictment  under  the  act  concerning  mali- 
cious, unlawful  shooting,  stabbing,  etc.,  which  charges  that  the 
prisoner  did  unlawfully  shoot,  etc.,  with  set  purpose  and  malice 
aforethought  to  kill  and  murder,  etc.,  the  jury  find  the  prisoner 
guilty  of  malicious  shooting,  without  saying  who  is  shot,  and 
fix  the  term  of  his  imprisonment  in  the  penitentiary  at  five 
years.     No  judgment  can  be  entered  on  the  verdict. 

In  Hoback's  Case,  28  Grat.,  922,  decided  January,  1877,  it 
was  held :  On  an  indictment,  under  this  section,  of  H.,  that  he 
maliciously  and  of  his  malice  aforethought  did  shoot  one  8., 


968  Citations  to  the  Code  of  Virginia. 

the  jury  returned  their  verdict:  "We,  the  jury,  find  the  defend- 
ant, H.,  not  guilty  of  malicious  shooting,  as  in  the  within  in- 
dictment charged,  but  guilty  of  unlawful  shooting,  with  intent 
to  maim,  disfigure,  and  kill ;  and  we  fix  his  term  of  confinement 
in  the  penitentiary  at  two  years."  The  verdict  is  to  be  read  in 
connection  with  the  indictment,  and,  therefore,  it  sufficiently  in- 
dicates the  person  shot. 

In  Stuart's  Case,  28  Grat.,  950,  decided  July,  1877,  it  was 
held :  It  is  settled  law  in  this  State  that  where  there  are  several 
counts  in  an  indictment,  and  the  jury  find  the  accused  guilty 
upon  one  of  the  counts,  but  say  nothing  as  to  the  others,  the 
verdict  operates  as  an  acquittal  upon  the  counts  of  which  the  ver- 
dict takes  no  notice;  and  the  court  should  enter  a  judgment 
accordingly.  And  the  same  rule  applies  where,  on  an  indict- 
ment for  murder,  the  jury  find  the  prisoner  guilty  of  man- 
slaughter, or  on  an  indictment  for  malicious  stabbing,  etc.,  with 
intent  to  maim,  disfigure,  or  kill,  the  jury  find  the  prisoner 
guilty  of  unlawful  stabbing,  with  intent  to  kill. 

Under  an  indictment  with  only  one  count,  for  malicious  stab- 
bing, shooting,  or  cutting,  with  the  intent  to  kill,  the  accused 
may  be  convicted  of  the  offence  charged,  or  of  unlawfully  doing 
such  acts,  or,  indeed,  of  any  other  offence,  felony,  or  misde- 
meanor which  is  substantially  charged  in  the  indictment. 

In  Jones  8  Case,  31  Grat.,  830,  decided  November  14,  1878, 
it  was  held :  J.  was  indicted  for  malicious  stabbing,  etc.,  of  W., 
with  intent  to  maim,  etc.  The  jury  found  J.  guilty  of  unlawful 
cutting,  "as  charged  in  the  within  indictment,"  which  has  re- 
ference both  to  the  cutting  and  to  the  intent,  and  is  a  sufficient 
finding  of  the  intent  with  which  the  unlawful  act  was  done  to 
meet  the  requirements  of  the  statute. 

In  Price's  Case,  11  Va.,  393,  decided  April  12,  1883,  it  was 
held :  On  an  indictment  for  maliciously  shooting,  with  intent  to 
kill,  etc.,  one  S.,  the  jury  return  their  verdict:  "We,  the  jury, 
find  the  prisoner  guilty  of  unlawful  shooting  with  intent  to  kill, 
as  charged  in  the  indictment,  and  fix  the  term  of  imprisonment 
at  three  years  in  the  penitentiary."  The  verdict  is  to  be  read 
in  connection  with  the  indictment,  and,  therefore,  it  sufficiently 
indicates  the  person  shot. 

In  Jones's  Case,  87  Va.,  63,  decided  November  13,  1890,  it 
was  held :  Indictment  charging  that  accused  made  assault  with 
a  stone,  and  did  feloniously,  maliciously,  and  unlawfully  beat, 
wound,  ill-treat,  and  cause  bodily  injury,  etc.,  sufficiently  con- 
forms to  this  section. 

Section  3673. 

In  Walker's  Case,  2  Va.  Cases,  515,  decided  by  the  General 
Court,  June,  1826,  it  was  held  :  A  jail  abandoned  by  the  county 


Citations  to  the  Code  of  Virginia.  969 

for  the  purposes  of  a  jail,  but  open  and  accessible  to  the  citizens 
of  the  county,  is  a  public  place  under  the  gaming  act. 
The  reference  to  4  Leigh,  480,  is  an  error. 

Section  3674. 

In  Hardy  &  Curry's  Case,  17  Grat.,  592,  decided  January 
26,  1867.  An  indictment  for  robbery  charged  that  the  pri- 
soners "did  make  an  assault"  upon  G.,  and  one  gold  watch, 
etc.,  from  the  person  and  against  the  will  of  G.,  etc.,  "  felo- 
niously and  violently  did  steal,"  etc.  The  jury  acquitted  the 
prisoners  of  the  felony  charged,  but  found  them  guilty  of  "  as- 
sault and  battery."  On  motion  in  arrest  of  judgment,  held : 
The  finding  is  valid. 

In  Jordan  s  Case,  25  Grat.,  943,  decided  December,  1874,  it 
was  held :  The  prisoner  is  prosecuted  for  the  robbery  of  a  pistol. 
If  he  snatched  the  pistol  from  the  hands  of  the  prosecutor  sim- 
ply to  prevent  the  prosecutor  from  using  it  against  his  assailants, 
without  at  the  time  intending  to  appro prite  it,  though  he  after- 
wards takes  it  away  and  sells  it,  this  is  not  robbery  of  the  pistol, 
though  he  and  others  went  to  the  house  of  the  prosecutor  for 
the  purpose  of  committing  a  robbery.  But  in  such  case,  if  the 
prisoner,  when  he  snatched  the  pistol,  had  the  intention  to  de- 
prive the  prosecutor  of  it,  though  he  may  also  have  had  the 
purpose  to  prevent  the  use  of  it  by  the  prosecutor,  this  is  rob- 
bery. To  constitute  a  robbery  it  is  not  necessary  that  the  pri- 
soner should  intend  to  appropriate  the  property  to  his  own  use. 
If  he  intended  to  deprive  the  prosecutor  of  his  property,  that  is 
sufficient. 

In  Houstons  Case,  87  Va.,  257,  decided  December  16,  1890, 
it  was  held:  Where  indictment  charges  accused  with  robbeiy 
by  presenting  of  firearms,  it  is  proper  to  charge  the  jury  that  if 
they  find  him  guilty,  as  alleged  in  the  indictment,  they  should  fix 
his  punishment  according  to  the  provisions  of  the  first  clause  of 
this  section. 

Section  3675. 

In  MitchelVs  Case,  75  Va.,  856,  decided  November,  1880.  On 
an  indictment  against  M.  for  extorting  money  from  R.,  an  un- 
married female,  by  threats  to  prosecute  her  for  a  criminal  offence, 
on  the  issue  of  not  guilty,  R.,  as  a  witness  on  her  examination- 
in-chief,  spoke  of  what  passed  at  two  interviews  between  her 
and  the  accused,  and  on  cross-examinations  she  stated  that 
there  had  been  several  interviews  between  the  two  that  she  had 
spoken  of,  at  which  she  ascertained  that  the  accused  was  the 
person  that  she  had  seen  wandering  about  her  home;  the  wit- 
ness will  not  be  required  to  state  generally  what  passed  at  these 
interviews,  but  only  so  much,  if  anything,  as  bears  upon  the 
issue,  and  what  was  said  in  respect  to  identifying  each  other  in 


970  Citations  to  the  Code  op  Virginia. 

connection  with  liaving  seen  him  about  the  premises  of  her 
father. 

On  a  trial  a  paper  was  produced,  signed  by  the  witness,  R., 
in  which  she  stated  that  she  had,  in  March,  1869,  given  birth 
to  a  child  which  she  had  killed,  and  Dr.  Bass  had  been  sent  for 
to  deliver  her  of  the  after-birth,  and  introduced  in  evidence, 
which  paper,  the  witness  stated,  she  had  been  compelled  by  the 
accused  to  copy  and  sign  and  give  to  him,  though  she  told  him 
at  the  time  it  was  a  lie.  And  then  the  counsel  for  the  accused 
proposed  to  ask  the  witness:  In  1869  were  you  in  the  family 
way?  Were  you  delivered  of  a  child  on  March  23, 1869?  Was 
Dr.  Bass  sent  for  to  attend  you?  Did  he  deliver  you  of  the 
after-birth  on  the  following  morning?  But  the  court  excluded 
all  the  questions.  Held :  The  questions  were  irrelevant  to  the 
issue,  and  were  properly  excluded.  Whether  the  female,  R.,  was 
virtuous  or  vicious,  she  was  equally  entitled  to  the  protection 
of  the  law. 

Section  3678. 

In  Anderson's  Case,  5  Rand.,  627,  decided  by  the  General 
Court,  November,  1826,  it  was  held  :  The  seduction  of  a  female 
over  sixteen  years  old  (being  not  within  the  statute)  cannot  be 
punished  by  indictment.  It  would  have  been  otherwise  if  a  con- 
spiracy had  been  charged. 

Section  3680. 

In  Bennefs  Case,  2  Va.  Cases,  235,  decided  by  the  General 
Court,  November,  1820,  it  was  held :  In  an  indictment  for  rape, 
if  the  charge  is  for  carnally  knowing  and  abusing  a  female 
child  under  ten,  instead  of  a  woman  child,  it  is  good  after  ver- 
dict. 

In  the  same  case  "unlawfully"  was  omitted, this, too, is  cured 
by  the  statute  of  jeofails,  that  word  not  being  one  of  art. 

The  first  part  of  the  act  against  rape  applies  only  to  a  rape 
on  a  female  over  ten  years  of  age,  the  third  section  to  cases 
where  she  is  under  ten  years,  and  applies  whether  she  consented 
or  not,  such  a  child  being  incapable  of  consent. 

If  the  count  for  a  rape  under  the  third  section  charges  more 
than  is  necessary  (as  that  the  prisoner  "forcibly  ravished,"  and 
"that  it  was  done  against  the  will  and  without  the  consent"  of 
the  person  on  whom  it  was  committed),  that  part  may  be  re- 
jected as  surplusage. 

In  Field's  Case,  4  Leigh,  648,  decided  by  the  General  Court, 
December,  1832.  Upon  an  indictment  it  is  found  that  a  free 
negro,  not  intending  to  have  carnal  knowledge  of  a  white 
woman  by  force,  but  intending  to  have  such  knowledge  of  her 
while  she  was  asleep,  got  into  bed  with  her,  and  pulled  up  her 
night  garment,  which  waked  her,  using  no  other  force.    Held : 


Citations  to  the  Code  of  Virginia.  971 

This  was  not  an  attempt  to  ravish,  within  the  meaning  of  the 
statute. 

In  Waits's  Case,  4  Leigh,  672,  decided  by  the  General  Court, 
December,  1833,  it  was  held :  A  white  girl  under  twelve  years 
of  age,  and  not  having  attained  to  puberty,  is  a  white  woman, 
within  the  meaning  of  the  statute,  making  it  a  felony  punish- 
able with  death  for  a  slave,  free  negro,  or  mulatto  to  attempt  to 
ravish  a  white  woman. 

In  Brogys  Case,  10  Grat.,  722.  On  a  trial  for  rape,  the  main 
question  is  as  to  the  identity  of  the  prisoner.  The  female  is  ex- 
amined, and  although  she  swears  that  the  prisoner  is  the  person 
that  committed  the  outrage  upon  her,  she  declines  to  give  a  de- 
scription of  him  as  at  the  time  of  the  outrage.  The  Common- 
wealth then  introduces  a  witness  to  prove  the  particulars  of  the 
description  of  the  person  who  committed  the  outrage,  given  by 
the  female  to  the  witness  on  the  morning  after  the  rape  was 
committed,  and  before  she  had  seen  the  prisoner,  in  con-obora- 
tion  or  proof  of  the  causa  scientice  of  the  female  witness.  Held : 
Though  it  is  competent  to  prove  the  fact  of  a  recent  complaint 
by  the  female  for  the  purpose  of  sustaining  her  credit,  it  is  not 
competent  to  prove  the  particulars  of  her  complaint ;  and  so  it 
is  not  competent  to  prove  the  particulars  of  the  description 
given  by  her. 

The  female  having  declined  to  give  a  description  ot  the  person 
who  committed  the  outrage,  when  upon  oath,  it  is  not  competent 
to  prove  the  description  given  by  her  when  not  upon  oath. 

In  Taijlor's  Case,  20  Grat.,  825,  decided  March,  1871.  An 
indictment  for  rape  does  not  charge  that  it  was  committed  on  a 
female,  but  the  name  given  is  a  woman's  name,  and  the  indict- 
ment uses  the  pronouns  "she  "  and  "her"  in  ppeaking  of  the 
person  upon  whom  the  rape  was  committed.  Held :  Though  it 
would  have  been  better  to  use  the  word  female,  as  it  is  the  word 
used  in  the  statute,  yet  the  language  used  sufficiently  shows  that 
the  rape  was  committed  on  a  female,  and  is,  therefore,  good. 

The  question  whether  the  name  in  the  indictment  is  id^Tn 
sonans  with  the  true  name  of  the  person  upon  whom  the  offense 
was  committed,  is  a  question  for  the  jury  and  not  for  the  court. 

The  indictment  charges  that  the  rape  was  committed  upon 
Helen  Francis  Davis,  and  the  true  name  is  Helen  Francis 
Davids,  but  the  proof  is  that  she  was  as  frequently  called  the 
first  in  the  community  as  the  last.  The  proof  of  the  rape  upon 
Helen  Francis  Davids  is  admissible  under  the  indictment. 

In  Christian's  Case,  23  Grat.,  954,  decided  March  19, 1873,  it 
was  held :  It  seems  that  in  an  indictment  for  an  attempt  to 
commit  a  rape,  the  word  ravish,  as  descriptive  of  the  offence 
attempted,  is  not  necessary,  but  the  words  "  feloniously  carnally 
to  know,"  are  sufficient. 


972  Citations  to  the  Code  of  Vibginia. 

Same  case,  page  958,  the  court  said :  Whether  the  proof  is 
sufi&cient  or  not  must  depend  on  the  circumstances  of  each 
case,  among  which  the  character  and  condition  of  the  parties 
may  have  an  important  bearing.  Acts  of  the  accused,  which 
would  be  ample  to  show  and  to  produce  conviction  on  the  mind, 
that  it  was  the  wicked  intent  and  purpose  to  commit  this  in- 
famous crime,  if  done  in  reference  to  a  female  of  good  and  vir- 
tuous character,  would  be  wholly  insufficient  to  establish  guilt 
if  they  were  acts  done  to  a  female  of  dissolute  character  and 
«asy  virtue. 

In  Boxle]/s  Case,  24  Grat.,  649,  decided  January,  1874,  it  was 
held :  The  prisoner  is  entitled  to  a  new  trial,  on  the  ground  of 
surprise,  the  testimony  of  the  principal  witness,  as  given  in 
court,  varying  materially  from  that  given  before  the  committing 
justice,  and  the  justice,  who  was  a  physician,  having  been  called 
away  at  the  time  of  the  trial. 

In  Givens's  Case,  29  Grat.,  830,  decided  January,  1878,  it  was 
held:  To  carnally  know  a  female  child  under  twelve  years  of 
age,  whether  with  or  without  her  consent,  is  a  rape.  To  at- 
tempt to  carnally  know  a  child  under  twelve  years  of  age,  with- 
out or  with  her  consent,  is  an  olFence  embraced  in  the  statute. 

The  statute  provides  that  the  offence  charged  may  be,  at  the 
discretion  of  the  jury,  punished  with  death  or  with  confinement 
in  the  penitentiary.  This  is  a  death  penalty,  and  the  attempt 
to  do  the  act  forbidden  is  embraced  in  the  statute.  In  a  pro- 
secution for  carnally  knowing  a  female  child  under  twelve  years 
of  age,  the  jury  find  the  prisoner  not  guilty  of  the  act,  but 
guilty  of  the  attempt  to  commit  it.  The  only  witness  as  to  the 
act  was  the  child,  who  was  proved  by  her  mother  to  be  between 
ten  and  eleven  years  of  age.  The  court  below  having  refused 
to  set  aside  the  verdict  and  to  grant  a  new  trial,  the  appellate 
court  will  not  reverse  the  judgment. 

In  Lawrence's  Case,  30  Grat.,  845,  decided  March,  1878,  it 
was  held :  The  indictment  for  rape  charges  in  one  count  that  it 
was  done  by  force,  and  against  the  consent  of  the  female,  and 
that  she  was  under  twelve  years  of  age.  The  prisoner  may  be 
convicted  under  the  indictment  if  the  jury  shall  believe  that  she 
was  under  twelve  years  of  age,  though  she  consented  to  the  act. 
The  prisoner  may  be  convicted,  though  the  female  told  him  that 
she  was  over  twelve  years  of  age,  and  he  had  reasonable  cause 
to  believe  that  she  was  over  that  age.  He  takes  the  risk,  and 
if  she  is  not  over  twelve  years  old,  he  is  guilty  under  the 
statute. 

In  Law's  Case,  75  Va.,  885,  decided  March,  1881,  it  was  held : 
A  boy  under  fourteen  years  of  age,  who  assists  another  person 
in  an  attempt  to  commit  a  rape,  ma}^  be  convicted  as  a  princi- 
pal in  the  second  degree,  and,  under  the  Virginia  statute,  may 


Citations  to  the  Code  op  Virginia.  973 

be  punished  the  same  as  the  principal  in  the  first  degree,  if  it 
appear,  under  all  the  circumstances  of  the  case,  that  he  had  a 
"  mischievous  discretion." 

In  any  case  of  felony,  the  principal  in  the  second  degree  is 
punishable  in  Virginia  as  if  he  were  the  principal  in  the  first 
degree. 

The  fact  that  a  boy  eleven  years  and  eleven  months  old,  of 
"average  capacity"  for  his  age,  put  his  hand  over  the  mouth  of 
a  female  whilst  his  elder  brother  attempted  to  commit  a  rape 
upon  her,  is  not  sufficient  of  itself  for  his  conviction  as  princi- 
pal in  the  second  degree  of  the  fc  lony  of  which  his  elder  bro- 
ther had  been  convicted.  The  evidence  of  malice,  which  is  to 
supply  age,  must  be  beyond  all  doubt  and  contradiction. 

In  Broioris  Case,  11  Virginia  Law  Journal,  237.  There  was 
simply  no  evidence  to  warrant  a  conviction,  no  questions  of  law 
raised  at  any  stage  of  the  proceedings. 

In  Fr^js  Case,  82  Va.,  334,  decided  September  16,  1886,  it 
was  held :  It  is  not  allowable  on  cross-examination  to  ask  prose- 
cutrix at  the  trial  of  an  indictment  for  rape,  if  she  had  been  be- 
fore a  person  of  unchaste  character. 

In  Smith's  Case,  85  Va.,  924,  decided  March  21,  1889,  it  was 
held :  An  indictment  for  rape  in  the  words  of  this  section  defin- 
ing the  offence  is  good. 

In  MitchelVs  Case,  89  Va.,  826,  decided  March  30,  1893.  On 
the  trial  for  rape,  after  the  jury  were  directed  to  consider  of 
their  verdict,  the  clerk  called  their  attention  to  the  charge  which 
had  been  given  to  them  as  to  the  punishment,  and,  at  his  sug- 
gestion, the  jury  took  such  charge  with  them  to  their  room. 
Held :  No  error. 

Section  3681. 

The  references  to  2  Va.  Cases,  144,  and  11  Leigh,  586,  both 
relate  to  stolen  negroes,  and  are  no  longer  of  value. 

In  Davenports  Case,  1  Leigh,  588,  it  was  held:  The  offence 
is  complete  by  the  kidnapping  without  actual  sale. 

Section  3682. 
The  reference  to  11  Grat.,  697,  is  entirely  upon  the  civil  as- 
pect of  this  offence,  and  has  no  bearing  upon  the  criminal  view. 

Section  3686. 
The  reference  to  2  Va.  Cases,  576,  is  an  error. 
In  Lambert's  Case,  9  Leigh,  603,  decided  by  the  General  Court, 
June,  1838,  it  was  held :  An  indictment  at  common  law,  charg- 
ing that  the  defendant  did  ^ght  a  duel  with  pistols,  is  bad  on 
demurrer. 

Section  3691. 
In  Jones's  Case,  1  Va.  Cases,  270,  decided  by  the  General 


974  Citations  to  the  Code  of  Virginia. 

Court,  it  was  held :  A  judge  out  of  court  has  power  to  commit  a 
witness  who  may  refuse  to  give  testimony  by  affidavit  under 
this  section. 

Section  3692. 

In  CullerCs  Case,  24  Grat.,  624,  decided  November,  1873,  it 
was  held :  By  the  8th  section  of  the  bill  of  rights  of  Virginia  a 
person  is  not  only  secured  against  giving  evidence  against  him- 
self on  his  own  trial,  but  he  cannot  be  required,  on  the  trial  of 
another,  to  testify,  if  his  evidence  will  tend  to  criminate  him- 
self. 

Even  if  a  person  may  be  required  to  give  evidence  on  the 
trial  of  another  which  might  tend  to  criminate  himself,  if  the 
statute  afforded  him  a  complete  indemnity  by  discharging  him 
from  all  prosecution  for  the  offence  (of  which  quoere)  the  act  of 
October  7,  1870,  amending  Section  1,  Chapter  12,  of  the  Code 
of  1860,  does  not  afford  that  indemnity,  and,  therefore,  in  re- 
quiring any  person  engaged  in  a  duel  to  testify  against  another 
prosecuted  for  having  fought,  etc.,  such  duel,  is  unconstitutional. 

Under  the  principles  of  the  common  law  and  the  statutes 
against  dueling,  it  may  well  be  apprehended  that  the  surgeon  of 
a  party  to  a  duel  would  be  regarded  in  law  as  being  concerned 
in,  or  as  aiding  or  abetting  the  duel. 

The  fact  that  the  witness  has  testified  before  the  coroner  and 
stated  the  facts  does  not  deprive  him  of  the  privilege,  it  is  not  a 
a  waiver  of  it  by  him. 

In  Temple's  Case,  75  Va.,  892,  decided  March,  1881,  it  was 
held :  The  act  of  criminal  procedure,  which  provides  that  a  wit- 
ness giving  evidence  in  a  prosecution  for  unlawful  gaming  shall 
never  be  proceeded  against  for  any  offence  of  unlawful  gaming 
committed  by  him  at  the  time  and  place  indicated  in  such  prose- 
cution, does  n6t  apply  to  a  prosecution  for  managing  and  con- 
ducting a  lottery,  and  a  witness  cannot  be  required  to  testify  in 
such  a  case  if  he  will  thereby  criminate  himself. 

The  fact  that  the  witness  testified  before  the  grand  jury,  and 
that  it  was  on  his  testimony  that  the  indictment  was  found,  will 
not  deprive  him  of  his  privilege  to  decline  to  testify  on  the  trial 
of  the  party  indicted. 

In  Kendrick's  Case,  78  Va.,  490,  decided  March  27, 1884.  K. 
was  sworn  and  sent  to  the  grand  jury  to  testify  as  to  charge 
against  S.  of  unlawful  gambhng,  and  refused  to  answer  questions 
propounded  by  grand  jury  because  the  answers  would  tend  to 
criminate  himself.  Held :  Statute  secures  full  protection  to  wit- 
nesses testifying  in  prosecutions  for  unlawful  gaming,  and  K.  is 
not  justified  in  refusing  to  testify  on  the  ground  that  his  answer 
will  tend  to  criminate  and  disgrace  him. 


Citations  to  the  Code  of  Virginia.  975 

CHAPTER  CLXXXL 

Section  3695. 

In  Posey's  Case,  4  Call,  109,  decided  November,  1787,  it  was 
held:  In  an  indictment  at  common  law  it  is  not  necessary  to 
state  that  the  house  burnt  was  a  dwelling-house,  for  the  word 
house  imports  it ;  and  if  upon  the  trial  it  appears  that  it  was  not 
a  house  upon  which  arson  could  be  committed,  it  is  the  duty  of 
the  judges  to  direct  the  jury  to  acquit  the  prisoner. 

In  Stevens's  Case,  4  Leigh,  683,  decided  by  the  General  Court 
July,  1834.  Indictment  for  arson  describes  the  house  burned  as 
"the  county  jail  and  prison  of  the  County  of  H.,  being  the  house 
of  L.  J.,  sheriff  and  jailer  of  the  said  county.  Held:  The  burn- 
ing of  such  jail  is  felony  by  the  statute,  and  whether  the  jail 
may  be  properly  said  to  be  the  house  of  the  sheriff  and  jailer  or 
not,  that  part  of  the  description  is  unnecessary  and  may  be  re- 
jected as  surplusage. 

In  HoweVs  Case,  5  Grat.,  664,  decided  June,  1848,  it  was  held: 
In  indictments  for  statutory  offences  the  language  of  the  statute 
defining  the  offence  should  be  strictly  followed.  In  an  indict- 
ment for  arson  under  the  statute  it  is  not  sufficient  to  use  the 
words  set  fire  to  the  house,  but  the  word  burn  must  be  used, 
that  being  the  word  employed  in  that  section  of  the  statute  to 
define  the  offence. 

In  CurravbS  Case,  7  Grat.,  619,  decided  June,  1850,  by  the 
General  Court,  it  was  held :  An  indictment  for  arson,  according 
to  the  form  at  common  law,  is  sufficient  in  a  case  of  arson  in  the 
day  time. 

To  convict  of  the  offence  of  burning  at  night,  it  seems  the  in- 
dictment must  charge  the  burning  in  the  night. 

Though  the  offence  of  burning  in  the  day  time  may  be  charged 
in  the  common  law  form,  yet  it  is  more  appropriate  to  charge 
the  burning  in  the  day  time. 

The  indictment  charges  the  setting  fire  to  and  burning  the 
dwelling-house  of  E.  on  the  11th  of  February,  1850.  The  ver- 
dict is  "guilty  of  arson  in  the  day  time,  on  the  11th  of  February, 
1850."     The  verdict  is  sufficiently  certain. 

In  Hooker's  Case,  13  Grat.,  763,  decided  November  23,  1855, 
it  was  held :  A  house,  though  it  was  built  for  a  dwelling-house, 
and  had  been  used  as  such,  and  although  it  was  about  to  be 
used  as  such  again,  yet  having  been  unoccupied  for  ten  months 
previous,  and  being  unoccupied  when  it  is  burned,  is  not  a 
dwelling-house  within  the  meaning  of  the  statute. 

In  Page's  Case,  26  Grat.,  943,  decided  April  1,  1875,  it  was 
held :  A  count  in  an  indictment  which  charges  that  the  prisoner 
at  night  did  bum  "  a  certain  other  house  called  a  bam  or  stable 
of  one  R.  there  situate,  the  same  being  an  out  house  not  adjoin- 


976  Citations  to  the  Code  of  Vieginia. 

ing  the  dwelliiig-liouse,  nor  under  the  same  roof,  but  some  per- 
sons usually  lodging  therein  at  night,  to-wit : "  etc.,  does  not  set 
out  an  offence  for  which  the  punishment  is  death. 

On  such  a  count  the  prisoner  having  been  found  guilty,  and 
sentenced  to  be  hung,  the  appellate  court  will  reverse  the  judg- 
ment. But  as  the  count  does  charge  the  burning  of  a  barn 
and  stable,  which  is  punishable  by  imprisonment  in  the  peni- 
tentiary, the  additional  description  of  the  barn  in  the  count  may 
be  rejected  as  surplusage,  and  he  will  be  remanded  to  be  tried 
for  that  offence. 

To  make  an  out-house  not  adjoining  a  dwelling-house,  nor 
under  the  same  roof,  parcel  thereof,  within  the  meaning  of  the 
statute,  two  things  must  appear :  First,  That  such  out-house  is 
within  the  curtilage  of  the  dwelling  house,  and  occupied  there- 
with ;  and,  Second,  That  some  person  usually  lodges  therein  at 
night. 

A  dwelling-house,  in  the  meaning  of  the  statute,  embraces  all 
its  parcels,  including  such  an  out-house  as  is  parcel  thereof. 
The  burning  of  such  an  out-house  is  the  burning  of  a  dwelling- 
house  in  the  meaning  of  the  law,  and  may  be  so  described  in 
the  indictment,  and  proof  of  the  burning  of  the  out-house  will  as 
much  sustain  the  indictment  as  would  proof  of  the  burning  of 
the  principal  dwelling-house,  or  the  whole  of  it,  including  all  the 
parcels. 

Section  3696. 

In  Butler's  Case,  81  Va.,  159,  decided  December  3,  1885,  it 
was  held:  An  indictment  for  the  burning  of  "a  certain  store- 
house, not  adjoining  or  occupied  with  the  dwelling-house  of  one 
S.,"  sufficiently  describes  the  store-house  as  the  property  of  S. 

Section  3697. 
The  reference  to  27  Grat.,  1009,  is  not  in  point. 

Section  3698. 

In  ErsMvbS  Case,  8  Grat.,  624,  decided  December,  1851,  by 
the  General  Court,  it  was  held :  The  malicious  burning  of  wheat 
threshed  from  the  straw  is  not  a  violation  of  the  act. 

For  the  reference  to  26  Grat.,  943,  see  Page's  Case,  cited 
ante.  Section  3695. 

Section  3699. 

For  reference  to  4  Leigh,  737,  see  Stevens's  Case^  ante,  Sec- 
tion 3695. 

In  Erskins's  Case,  8  Grat.,  624,  decided  December,  1851,  by 
the  General  Court,  it  was  held :  The  malicious  burning  by  the 
owner  of  a  house  on  his  own  land,  the  house  being  then  the  le- 
gal occupancy  of  another,  is  a  violation  of  the  statute. 

In  Wolfs  Case,  30  Grat.,  833,  decided  March  21,  1878.    An 


Citations  to  the  Code  of  Virginia.  977 

indictment  charges  that  the  accused  "did  feloniously  and  ma- 
liciously burn  a  certain  barn  and  the  property  therein,  being 
the  property  of  one  H.  H.  Dulaney,  and  situated  in  the  county 
aforesaid,  which  said  barn  and  the  property  therein  was  then 
and  there  of  the  value  of  one  thousand  five  hundred  dollars. 
Held :  Sufficient. 

In  Iiicha7xi''s  Case,  81  Va.,  110,  decided  November  19,  1885, 
it  was  held:  Statute  provides  punishment  for  burning  "any 
building,  the  burning  thereof  is  not  punishable  under  any  other 
section"  of  said  chapter.  Indictment  under  said  section  must 
describe  the  building  with  such  particularity  as  will  inform  ac- 
cused what  building  is  meant. 

Section  3701. 

In  Earharfs  Case,  9  Leigh,  671,  decided  by  the  General  Court, 
December,  1839.  Indictment  for  unlawfully,  wilfully,  and  ma- 
liciously setting  fire  to  the  woods  near  the  plantation  of  A.  M., 
and  burning  said  woods  and  a  fence  belonging  to  said  A.  M.,  is 
described  in  the  record  of  the  finding  as  an  indictment  "for  set- 
ting fire  to  the  woods  and  burning  same."  Held :  A  sufficient 
record  of  the  finding. 

Section  3704. 

In  MeUlon's  Case,  4  Leigh,  652,  decided  by  the  General  Court, 
July,  1833,  it  was  held,  p.  660:  An  indictment  charging  that 
goods  were  feloniously  taken  from  a  dwelling-house,  and  charg- 
ing that  this  was  done  in  the  night  time,  is  not  a  good  indict- 
ment for  burglary,  but  is  only  an  indictment  for  larceny. 

In  Finclis  Case,  14  Grat.,  643,  decided  January  27,  1858,  it 
was  held :  An  entry  into  a  dwelling-house  in  the  day  time  through 
a  door  that  was  so  closed  that  it  came  within  the  casing,  and  to 
open  which  required  some  degree  of  force,  constitutes  in  law  a 
breaking,  though  there  was  no  fastening  of  any  other  kind  on 
the  door. 

The  word  "break"  in  the  Code  is  borrowed  from  the  law  of 
burglary,  and  is  to  be  understood  as  it  would  be  when  used  in 
a  charge  of  burglary. 

In  Speers's  Case,  17  Grat.,  570,  decided  January  21,  1867,  it 
was  held :  An  indictment  which  charges  a  breaking  into  a  house 
with  intent  to  steal,  and  the  stealing  therefrom,  is  an  indictment 
for  house-breaking  and  not  for  larceny,  and  is  good. 

To  such  a  count  may  be  added  a  count  for  simple  larceny  of 
the  same  goods,  and  the  jury  may  find  the  prisoner  guilty  on 
each  count,  and  fix  a  several  punishment  for  each  oflfence. 

In  Vaughn's  Case,  17  Grat.,  576,  decided  January  21,  1867. 
A  person  committed  on  a  charge  of  larceny  by  a  justice  is  sent 
in  charge  of  a  special  constable  and  the  prosecutor  to  jail,  and 
on  the  way  this  constable  says  to  him,  "you  had  as  well  tell  all 
about  it."    After  they  had  ridden  about  a  mile  after  this  remark 

62 


978  Citations  to  the  Code  of  Vieginia. 

without  any  other  remark  having  addressed  to  the  prisoner,  he 
voluntarily  says  to  the  prosecutor,  "  I  will  tell  you  all  about  it," 
and  proceeds  to  tell  how  and  by  whom  the  breaking  and  larceny 
were  committed.  The  constable  is  a  person  in  authority  over 
him,  and  the  statement  is  not  admissible  in  evidence. 

In  Clarke's  Case,  25  Grat.,  908,  decided  June,  1874,  it  was 
held:  D.  and  H.  rent  a  room  jointly  of  S.,  of  which  each  has  a 
key.  C.  rents  an  adjoining  room,  the  doors  of  the  two  rooms 
entering  upon  the  same  porch  near  each  other.  They  frequently 
interchange  visits.  On  the  night  of  March  11,  1874,  D.  locks 
his  door,  takes  out  the  key,  and  starts  to  church.  On  his  way 
he  meets  H.,  who  says  he  is  going  to  his  room,  and  will  follow 
him  to  the  church  soon.  H.  and  C.  conspire  to  steal  D.'s  goods 
in  the  absence  of  D.  on  this  night,  and  H.  opens  the  door  with 
his  key,  and  they  enter  the  room  and  take  and  carry  away  the 
trunk  of  D.  with  its  contents.  This  is  not  such  a  breaking  as 
will  constitute  burglary  in  C.  The  indictment  charging  not 
only  the  breaking  and  entering,  but  the  stealing  of  the  trunk  and 
its  contents  of  a  stated  value,  C,  though  acquitted  of  the  bur- 
glary, may  be  found  guilty  of  larceny. 

In  Walker's  Case,  28  Grat.,  969,  decided,  July,  1877,  it  was 
held :  Though  the  mere  possession  of  the  stolen  property  might 
not  he  prima  facie  evidence  of  the  burglary  or  house-breaking 
charged  in  the  indictment,  yet,  in  connection  with  other  evi- 
dence of  such  burglary  or  house-breaking,  evidence  of  posses- 
sion of  the  stolen  goods  is  admissible. 

In  Taliafei-rds  Case,  77  Ya.,  411,  decided  April  12,  1883,  it 
was  held:  It  is  well  settled  that  the  exclusive'  possession  of 
goods  recently  stolen,  unaccompanied  by  a  reasonable  account 
of  how  the  possession  was  acquired,  creates  a  presumption  that 
the  possessor  is  a  thief,  and  is  sufficient  to  warrant  his  convic- 
tion of  larceny.  But  it  has  never  been  decided  in  this  State 
that  possession  is  e\en  prima  facie  evidence  of  guilt  in  cases  of 
burglary  and  house-breaking.  The  question  was  discussed,  but 
not  decided  in  Walker's  Case,  28  Grat.,  969.  The  contrary  is 
laid  down  by  several  authorities. 

In  WrigMs  Case,  82  Va.,  183,  decided  July  1,  1886,  it  was 
held :  Indictment  charging  a  breaking  into  the  dwelling-house 
of  J.  with  intent  to  steal,  and  stealing  therefrom,  is  an  indict- 
ment for  burglary,  and  is  good.  Such  indictment  charging  that 
prisoner  six  labor  tickets,  of  the  value  of  six  dollars,  then  and 
there  feloniously  did  steal,  take  and  carry  away,  is  good,  though 
it  does  not  specify  the  articles  nor  state  that  they  were  the  pro- 
perty of  J.  or  of  any  other  person. 

Though  the  mere  possession  of  the  stolen  property  might  not 
he  prima  facie  evidence  of  the  burglary  charged  in  the  indict- 
ment, yet,  in  connection  with  other  evidence  of  such  burglary, 


Citations  to  the  Code  of  Virginia.  979 

evidence  of  exclusive  possession  of  the  stolen  property  is  ad- 
missible. 

In  Graveh/s  Case,  86  Va.,  396,  decided  December  5,  1889,  it 
was  held :  Recent  possession  of  stolen  goods  is  not  prima  facie 
evidence  of  guilt  of  burglary;  but  such  possession  is  a  material 
fact  to  be  considered  by  the  jury,  and,  with  other  culpatory 
facts,  such  as  a  refusal  by  the  accused  to  give  any,  or  his  giving 
a  false  account  of  how  he  came  by  the  goods,  will  warrant  a  con- 
viction. 

Section  3705. 

In  Lawrence's  Case,  81  Ya.,  484,  decided  February  25,  1886, 
it  was  held  :  Indictment  in  usual  form  for  "house-breaking"  is 
not  sufficient,  because  it  does  not  negative  the  idea  that  the  bar- 
room which  was  broken  and  entered  adjoined  any  dweUing- 
house  other  than  that  of  the  owner  of  the  bar-room. 

Section  3706. 
In  Benton's  Case,  89  Va.,  570,  decided  January  26,  1893,  it 
was  held :  A  felony  is  such  an  offence  as  may  be  (not  must  be) 
punished  by  death  or  confinement  in  the  penitentiary.  Break- 
ing and  entering  a  house  in  the  night  time  with  intent  to  commit 
larceny  may  be  punished  by  imprisonment  in  the  penitentiary 
or  in  jail,  at  the  discretion  of  the  jury. 

SjiCTiON  3707. 

In  Thompson's  Case,  2  Va.  Cases,  135,  decided  by  the  General 
Court,  June,  1818,  it  was  held :  In  larceny  at  common  law  the 
indictment  need  not  charge  that  the  goods  were  stolen  from  the 
possession  of  the  owner  or  of  any  other  person. 

In  Angel's  Case,  2  Va.  Cases,  228,  decided  by  the  General 
Court,  November,  1820,  it  was  held :  In  an  indictment  for  the 
larceny  of  bank-notes  under  the  statute  it  is  not  necessary  that 
it  should  charge  that  the  stealing  was  from  the  possession  of 
any  one. 

In  Chiles's  Case,  2  Va.  Cases,  260,  decided  by  the  General 
Court,  June,  1821,  it  was  held:  Indictments  for  horse-steahng 
need  not  conclude  contra  formam  statuti;  and  even  if  it  were 
proper  that  they  should,  the  omission  would  be  cured  by  the 
statute  of  jeofails. 

In  Poindexter's  Case,  6  Eand.,  667,  decided  by  the  General 
Court,  November,  1828,  it  was  held :  If  a  person  be  indicted  for 
grand  larceny,  and  the  jury  convict  him  of  petit  larceny,  without 
ascertaining  the  value  of  the  goods  stolen,  the  verdict  is  sufficient. 
'^K  verdict  which  does  not  ascertain  what  goods  were  stolen, 
nor  their  value,  nor  whether  they  are  forthcoming  or  not,  nor 
what  articles  are  not  forthcoming,  if  any,  nor  the  value  of  such 
as  are  not  forthcoming,  but  merely  finds  the  prisoner  guilty  of 


980  Citations  to  the  Code  of  Vikginia. 

petit  larceny  on  an  indictment  for  grand  larceny,  will  not  be  set 
aside  as  erroneous. 

The  reference  to  7  Leigh,  152,  is  an  error. 

In  Walkefs  Case,  8  Leigh,  743,  decided  by  the  General  Court, 
December,  1837.  A  person  employed  by  a  mercantile  firm  as  a 
salesman  in  their  store,  having  full  control  of  the  goods  in  the 
store-room  and  the  money  in  the  cash-drawer,  for  the  purpose 
of  his  employment,  abstracts  a  part  of  the  goods  and  money 
with  a  fraudulent  intent  to  convert  the  same  to  his  own  use. 
Held  :  He  is  guilty  of  larceny. 

In  Booth's  Case,  4  Grat.,  525,  decided  June,  1847,  by  the 
General  Court,  it  was  held:  On  a  trial  for  larceny  the  court 
instructs  the  jury  that  it  must  be  proved  that  the  original  taking 
was  felonious ;  but  that  the  jury  had  a  right  to  infer,  from  all 
the  facts  and  circumstances  of  the  case,  the  felonious  intent  in 
the  original  taking  ;  and  that  not  in  one  case  in  a  hundred  could 
it  be  proved  directly  that  the  original  taking  was  felonious. 
There  is  no  error  in  the  instruction. 

In  Hunts  Case,  13  Grat.,  757,  decided  November  23,  1855,  it 
was  held  :  Upon  trial  for  larceny  of  a  bank-note,  the  property  of  G., 
of  the  value  of  twenty  dollars,  it  is  error  to  instruct  the  jury, 
that  if  they  believe  from  the  evidence  that  G.  lost  a  bank-note 
of  the  value  of  twenty  dollars,  and  that  the  same  was  afterwards 
found  in  the  possession  of  the  prisoner,  they  ought  to  find  him 
guilty,  unless  his  possession  of  the  note  was  explained  by  tes- 
timony. 

The  mere  possession  of  goods  which  had  been  actually 
lost  does  not  furnish  any  conclusive  or  even  jprhna  facie 
proof  of  guilt;  of  itself  it  does  not  raise  the  suspicion  of 
guilt. 

To  constitute  larceny  in  the  finder  of  the  goods  actually  lost, 
it  is  not  enough  that  the  party  has  general  means  by  the  use  of 
proper  diligence  of  discovering  the  true  owner.  He  must 
know  the  owner  at  the  time  of  the  finding,  or  the  goods  must 
have  some  mark  about  them,  understood  by  him  or  presumably 
known  by  him,  by  which  the  owner  can  be  ascertained;  and  he 
must  appropriate  them  at  the  time  of  finding,  with  intent  to 
take  entire  dominion  over  them. 

In  Tanner's  Case,  14  Grat.,  635,  decided  November  17,  1858, 
it  was  held :  Lost  property  may  be  the  subject  of  larceny. 

To  constitute  a  larceny  of  lost  property  the  person  finding  it 
must  know  or  have  the  means  of  knowing  the  owner,  or  have 
reason  to  believe  that  the  owner  may  be  discovered,  and  he 
must  intend  at  the  time  of  finding  the  property  to  appropriate 
it  to  his  own  use. 

In  Jones's  Case,  17  Grat.,  563,  decided  October  4,  1866,  it 
was  held  :    In  a  trial  for  larceny  to  convict  the  prisoner  there 


Citations  to  the  Code  of  Yirginia.  981 

must  be  satisfactory  proof  that  the  property  stolen  was  the 
property  of  the  person  stated  in  the  indictment. 

In  Hughes's  Case,  17  Grat.,  565,  decided  January  18,  1867, 
it  was  held:  In  an  indictment  for  larceny,  the  name  of  the 
owner  of  the  property  charged  to  have  been  stolen  must  be 
stated ;  and  if  it  appears  that  the  person  so  stated  to  be  the 
owner  was  a  married  woman  at  the  time  of  the  larceny,  it  is 
error,  and  the  prisoner  should  be  acquitted. 

In  such  a  case  if  there  is  a  verdict  and  judgment  against  the 
prisoner,  which  on  appeal  is  reversed,  when  the  case  goes  back 
a  nolle  prosequi  may  be  entered,  and  a  new  indictment  may  be 
found. 

In  LeftwicKs  Case,  20  Grat.,  716,  decided  November,  1870,  it 
was  held :  The  statute  for  punishing  persons  obtaining  money 
or  other  property  which  may  be  the  subject  for  larceny,  and 
an  indictment  for  an  offence  may  be  either  in  the  form  of  an  in- 
dictment for  larceny  at  common  law,  or  by  charging  the  specific 
facts  which  the  act  declares  shall  be  deemed  larceny.  In  an  in- 
dictment under  this  statute  for  obtaining  money  under  a  false 
pretense,  it  is  not  sufficient  to  describe  it  as  "ninety  dollars  in 
United  States  currency,"  but  it  should  show  what  kind  of  United 
States  currency  was  obtained. 

In  Price's  Case,  21  Grat.,  846,  decided  January,  1872,  it  was 
held :  If  a  person  be  indicted  for  the  simple  larceny  of  a  thing, 
and  the  proof  be  that  it  was  stolen  by  some  other  person  and 
received  by  the  accused,  knowing  it  to  have  been  stolen,  the 
jDroof  will  sustain  the  charge ;  the  act  making  the  receiving  of 
a  thing  stolen,  knowing  it  to  be  stolen,  larceny.  P.  is  in- 
dicted for  receiving  a  horse  which  had  been  stolen,  know- 
ing that  it  had  been  stolen.  The  indictment  may  charge  espec- 
ially the  fact  of  receiving  the  horse,  with  the  knowledge  that  it 
had  been  stolen,  or  it  may  charge  P.  with  the  larceny  of  the 
horse,  and  the  latter  would  seem  to  be  the  better  practice.  If 
property  be  stolen  and  recently  thereafter  be  found  in  the  exclu- 
sive possession  of  the  prisoner,  then  such  possession  of  itself 
affords  sufficient  grounds  for  presumption  of  fact  that  he  was  the 
thief,  and,  in  order  to  repel  the  presumption,  makes  it  incumbent 
on  him,  or  being  called  on  for  the  purpose,  to  account  for  such 
possession  consistently  with  his  innocence.  If  he  gives  a  reason- 
able account  of  it,  then  it  devolves  on  the  Commonwealth  to 
prove  that  such  account  is  untrue.  If  he  gives  an  unreasonable 
account  of  it,  then  it  devolves  on  the  prisoner  to  sustain  such 
account  by  evidence.  What  is  such  a  recent  possession  as 
raises  a  presumption  against  a  prisoner  in  the  meaning  of  the 
rule,  is  a  question  for  the  jury,  and  depends  upon  the  nature  of 
the  property  and  other  circumstances  of  the  particular  case. 
-     In  Harvey's  Case,  23  Grat.,  941,  decided  March,  1873.    H. 


982  Citations  to  the  Code  op  Virginia. 

was  indicted  for  the  larceny  of  three  bee-hives  of  the  value  of 
five  dollars,  three  swarms  of  bees  of  the  value  of  three  dollars, 
and  forty  pounds  of  honey  of  the  value  of  five  dollars  of  the 
goods  and  chattels  of  C.  The  jury  by  their  verdict  found  him 
guilty  as  charged  in  the  indictment,  and  ascertained  the  term  of 
his  imprisonment  in  the  county  jail  at  three  months,  and  the 
judgment  of  the  court  was  for  three  months  imprisonment.  W. 
then  moved  in  aiTest  of  judgment,  because,  First,  The  jury  was 
not  authorized  to  fix  the  term  of  his  imprisonment ;  and,  Second^ 
Two  of  the  three  subjects  of  larceny  charged  in  the  indictment 
are  not  proper  subjects  of  larceny.  Held:  Though  the  jury  had 
no  authority  to  fix  the  imprisonment,  it  was  a  mere  surplusage, 
and  the  verdict  of  guilty  was  good,  and  the  imprisonment  was 
the  act  of  the  court. 

It  may  be  intended  after  verdict  that  the  bees  were  reclaimed, 
and  the  honey  the  property  of  C. 

If  any  one  of  three  subjects  mentioned  in  the  indictment 
might  be  the  subject  of  larcenj^  it  is  sufficient,  and  the  verdict 
will  not  be  arrested. 

In  Joh7iso7is  Case,  24  Grat.,  555,  decided  November,  1873,  it 
was  held  :  A.  was  standing  in  a  street  in  R.,  holding  six  dollars 
in  his  open  hand,  which  he  was  counting,  and  J.,  passing  by, 
took  the  money  out  of  his  hand  and  walked  off,  no  force  being 
used  beyond  what  was  necessary  to  withdraw  the  money.  A. 
asked  J.  for  it  several  times  as  she  walked  off,  but  she  would 
not  return  it.  This  is  grand  larceny  under  the  statute,  if  done 
aniTKio  farandi.  The  indictment  against  J.  is  for  stealing  six 
dollars  of  "United  States  treasury  notes."  Upon  an  exception 
to  the  refusal  of  the  court  to  grant  J.  a  new  trial,  the  certificate 
of  facts  states  that  A.  was  holding  some  money,  etc.  The  facts 
certified  do  not  sustain  the  verdict. 

In  Anahle's  Case,  24  Grat.,  563,  decided  November,  1873. 
Upon  an  indictment  for  larceny,  proof  that  the  accused  ob- 
tained money  by  false  pretenses  will  sustain  the  indictment. 
A.  was  the  secretary  of  the  board  of  supervisors  of  the  county 
of  H.,  and  there  was  to  his  credit  on  the  books  of  the  treasurer, 
for  claims  held  by  him  against  the  county,  $1,649.  Blank  war- 
rants, signed  by  the  chairman  of  the  board,  were  left  with  him, 
and  he  filled  up  and  sold  warrants  to  a  considerably  larger 
amount  than  the  sum  due  to  him.  Warrants  to  nearly  the 
amount  due  are  registered,  and  among  these  one  for  $350,  sold 
to  W.  But  there  were  other  warrants  sold  before  the  one  sold 
to  W. ;  but  if  they  had  been  registered  before  W.'s,  the  fund 
would  have  been  exhausted,  and  would  have  left  nothing  to  be 
applied  to  W.'s  warrant.  Upon  an  indictment  of  A.  for  larceny 
of  the  check  given  by  W.  for  payment  of  the  warrant,  held :  The 
warrants  are  to  be  paid  in  the  order  in  which  they  are  regis- 


Citations  to  the  Code  of  Vikginia.  983 

tered,  and,  there  being  sufficient  to  pay  W.'s  warrant  as  well  as 
all  the  warrants  registered  before  it,  A.  cannot  be  convicted  of 
the  larceny  charged. 

W.  having  bought  his  warrant  of  N.,  an  agent  of  A.,  and  hav- 
ing given  a  check  payable  to  the  order  of  N.,  and  the  indict- 
ment charging  the  larceny  of  the  check  of  W.  endorsed  by  N., 
and  the  proof  being  that  N.  endorsed  his  name  after  receiving 
the  check,  qucere  whether  this  is  a  variance. 

For  the  reference  to  25  Grat.,  908,  see  ante,  Section  3704, 
Clarke's  Case. 

For  the  reference  to  25  Grat.,  943,  see  Jordan^s  Case,  ante, 
Section  3674. 

In  Williams's  Case,  27  Grat.,  997,  decided  March,  1876.  W. 
was  indicted  for  stealing  $150,  the  money  of  S.  On  the  trial  it 
was  proved  that  J.,  a  detective,  arrested  W.,  who  made  a  con- 
fession, which  was  made  under  a  promise,  and  was  excluded  as 
evidence.  In  this  confession  he  directed  J.  to  go  to  certain 
gamblers  and  get  the  money  back  from  them.  J.  sent  for  the 
gamblers  named,  and  told  them  what  W.  had  said,  and  they 
paid  over  to  J.  and  S.  $104,  though  one  of  them  protested  that 
W.  had  not  been  at  his  house,  and  the  others  denied  that  he 
had  lost  the  money  claimed  with  them.  The  balance  of  the 
money,  $46,  was  paid  over  by  the  father  of  W.  Held :  It  not 
being  proved  that  the  money  paid  to  J.  was  the  same  lost  by  S., 
the  statement  of  W.  and  J.,  and  what  passed  between  J.  and 
the  gamblers  and  the  father  of  "W.,  is  not  competent  evidence. 

In  Trodgons  Case,  31  Grat.,  862,  decided  November,  1878. 
Upon  the  prosecution  of  T.  for  obtaining  goods  from  M.  &,  Co. 
upon  false  pretenses,  evidence  that  the  accused,  in  the  same 
city,  and  at  or  about  the  same  time,  purchased  goods  from 
other  parties,  B.  &  O.,  upon  the  same  false  pretenses,  is  admis- 
sible to  show  the  intent  of  the  accused  in  making  the  represen- 
tations to  M.  &,  Co.,  but  not  as  proof  that  the  accused  had  com- 
mitted other  oifences  not  charged  in  the  indictment,  and  this 
though  the  statute  has  made  the  obtaining  of  goods  on  false 
pretences  larceny.  A  statement  is  made  by  T.  of  his  partners 
and  of  the  condition  of  the  partnership  to  one  of  the  firm  of  M. 
&  Co.,  who  encloses  it  in  a  letter  to  another  member  of  the 
firm,  then  in  New  York,  and  asks  if  he  shall  send  the  goods, 
and  he  receives  a  reply  by  telegram  to  send  them.  The  state- 
ment is  admissible  as  evidence. 

On  the  15th  of  March,  1878,  L.,  having  received  an  order  to 
send  some  goods  to  T.  k  Co.,  obtained  from  B.  a  copy  of  the 
representations  made  to  him  by  T.  on  the  28th  of  February,  1878, 
which  were  the  same  representations  made  to  M.  He  mailed  a 
copy  to  T.  &  Co.,  asking  if  that  statement  represented  the  tnie 
condition  of  their  affairs,  and  received,  by  due  course  of  mail. 


S84  Citations  to  the  Code  of  Vikginia. 

a  letter  signed  T.  &  Co.,  saying  that  it  did,  and  that  the 
business  was  still  prospering.  Held:  The  testimony  of  L,,  his 
letter  to  T.  &  Co.  containing  the  statement,  and  the  answer  re- 
ceived by  him,  are  admissible  as  evidence  in  this  case  to  show 
the  intent  of  the  accused. 

Whenever  the  intent  or  guilty  knowledge  of  a  party  charged 
with  a  crime  is  a  material  ingredient  in  the  issue  of  the  case, 
other  acts  and  declarations  of  a  similar  character,  tending  to 
establish  such  intent  or  knowledge,  are  proper  evidence  to  be 
admitted,  provided  they  are  not  too  remotely  connected. 

Although,  under  the  statute  of  Virginia,  the  obtaining  of 
goods  by  false  pretenses  is  made  larceny,  and  an  indictment 
under  the  same  for  larceny  is  sufficient,  yet  every  ingredient 
entering  into  the  offence  of  obtaining  goods  by  false  pretenses 
must  be  shown  as  fully  as  if  the  statute  had  not  thus  passed. 

In  Hohiyisoris  Case^  32  Grat.,  866,  decided  January,  1879. 
On  a  trial  for  stealing  certain  bank-notes,  "the  numbers  and 
denominations  of  which  are  unknown  to  the  jurors,"  the  evi- 
dence of  the  Commonwealth  shows  that  the  numbers  and  de- 
nominations of  the  notes  were  known  to  the  jurors,  and  for  this 
variance  between  the  indictment  and  the  evidence ;  and  then, 
against  the  objection  of  the  prisoner,  excludes  the  evidence; 
and  then,  against  the  objection  of  the  prisoner,  discharges  the 
jury.  On  a  second  indictment  for  the  same  offence,  held: 
That  if  the  jury  had,  on  the  first  trial,  rendered  a  verdict  in 
favor  of  the  prisoner,  it  would  not,  under  the  statute,  have  been 
a  bar  to  another  indictment  and  trial  for  the  same  offence  ;  and 
therefore  the  discharge  of  the  jury  was  no  injury  to  the  pri- 
soner. 

In  Shinn's  Case,  32  Grat.,  899,  decided  March,  1879,  it  was 
held:  The  check  having  been  given  to  S.,  the  secretary,  in  pay- 
ment of  a  debt  due  to  the  association,  was  the  property  of  the 
association,  and  though  payable  to  S.,  as  secretary,  it  was  also 
payable  to  bearer,  and  it  was  the  duty  of  S.  to  turn  it  over  to 
the  treasurer.  If  S.  had  accounted  for  the  money,  that  fact 
would,  of  course,  show  that  he  had  no  intention  to  appropriate 
the  check ;  not  having  done  so,  it  was  a  question  for  the  jury 
whether  he  intended  to  embezzle  the  check ;  and  to  convict  him, 
it  was  necessary  for  the  jury  that  they  should  be  satisfied  that 
his  intention  existed  before,  or  at  the  time,  the  check  passed  into 
possession  of  the  bank. 

If  S.  drew  the  money  on  the  Avery  check  with  the  intention 
of  using  the  same  for  his  own  purpose,  and  not  for  the  liquida- 
tion of  the  Avery  debt,  though  probably  with  the  intention  to 
return  the  same  at  some  future  day  to  the  building  association, 
lie  is  guilty  of  the  embezzlement  of  the  check. 

In  Iley's  Case,  32  Grat.,  946,  decided  November,  1879,  it  was 


Citations  to  the  Code  of  Virginia.  985 

held :  To  sustain  the  prosecution  under  the  statute  four  things 
must  be  proved :  Firsts  That  the  goods  or  other  things  were 
previously  stolen  by  some  other  person.  Second,  That  the  ac- 
cused bought  or  received  them  from  another  person,  or  aided 
in  concealing  them.  Third,  That  at  the  time  he  so  bought  or 
received  or  aided  in  concealing  them,  he  knew  they  had  been 
stolen.  Fourth,  That  he  so  bought  or  received  them  mala  animo, 
or  with  a  dishonest  purpose. 

In  Wolverto?is  Case,  75  Va.,  909,  decided  November,  1881. 
An  article,  to  be  subject  to  larceny,  must  be  of  some  value ;  but 
it  may  be  worth  less  than  the  smallest  coin.  The  indictment  in 
this  case  charged  the  value  of  the  lock  stolen  to  be  thirty  cents. 
There  was  no  distinct  proof  of  any  specific  value,  nor  was  it 
necessary ;  the  evidence  showed  that  it  had  a  key  in  it,  and  was 
used  in  fastening  a  door.  Held :  This  was  sufficient  to  show 
that  it  was  of  some  value. 

In  Taliaferro's  Case,  11  Va.,  411,  decided  April  12,  1883. 
K.'s  dwelling  is  broken  open  and  her  goods  stolen  therefrom. 
Next  day  the  goods  are  found  on  a  bed  in  a  room  occupied  by 
prisoner  and  another  woman.  P.,  whose  friend  often  came  and 
spent  the  night  there.  On  the  second  day  prisoner  sold  the 
goods,  worth  nine  dollars,  for  seventy-five  cents,  and  said  she 
got  them  of  P.,  but  made  contradictory  statements.  Prisoner 
was  indicted  for  burglary,  and  convicted  of  house-breaking. 
Held: 

1.  Even  in  cases  of  simply  larceny,  in  order  to  raise  the  pre- 
sumption of  guilt  from  the  possession  of  stolen  goods,  it  is 
necessary  that  they  be  found  in  the  exclusive  possession,  and 
subject  to  the  exclusive  control,  of  the  accused.  Such  was  not 
the  case  here. 

2.  Prisoner's  conflicting  statements  as  to  how  she  came  by 
the  goods  certainly  excite  a  strong  suspicion  against  her,  yet 
the  testimony  is  insufficient  to  establish  her  guilt  of  burglary  or 
house-breaking. 

In  HalVs  Case,  78  Va.,  678,  decided  March  13,  1884.  H.,  in 
a  drunken  spree,  unhitched  and  mounted  a  horse  in  the  presence 
of  its  owner,  and  of  the  warehouse  man,  and  of  a  number  of 
factory  hands  in  the  warehouse  yard  where  the  horse  was 
liitched,  claiming  the  horse  as  his  own,  and  attempted  to  ride 
it  out  of  the  lot  homeward.  He  was  arrested,  remanded  to  jail, 
tried,  and  found  guilty  of  the  larceny  of  the  horse.  He  moved 
for  a  new  trial,  which  was  denied.  On  error,  held :  The  facts  do 
not  evince  felonious  intent,  and  do  not  warrant  the  verdict. 

See  Gravely  s  Case,  86  Va.,  396,  cited  ante,  Section  3704. 

In  Perrins  Case,  87  Va.,  554,  decided  March  26,  1891,  it  was 
held :  To  constitute  larceny  in  finder  of  lost  goods,  the  finder 
must  know   the  owner  at  time  of  finding,  or  the  goods  must 


986  Citations  to  the  Code  of  Virginia. 

have  some  mark  about  them  presumably  understood  by  him^ 
whereby  the  owner  can  be  ascertained,  and  he  must  appropriate 
them  at  the  time  with  intent  to  take  entire  dominion  over  them. 

In  Anthony's  Case,  88  Va.,  847,  decided  March  10,  1892,  it 
was  held :  When  indictment  charges  joint  defendants  with  con- 
spiracy to  commit  a  larceny,  and  then  charges  them  with  actually 
committing  the  larceny  in  pursuance  of  the  conspiracy,  there  is 
no  misjoinder. 

Obtaining  goods  under  false  pretenses,  with  intent  to  defraud, 
is  larceny,  and  it  is  not  a  misjoinder  to  include  a  count  there- 
for, with  other  larceny  counts  in  the  indictment. 

Section  3708. 

In  Moseli/s  Case,  2  Va.  Cases,  154,  decided  by  the  General 
Court,  June,  1819,  it  was  held:  An  indictment  which  charges  a 
larceny  of  bank-notes  "of  the  value,  etc.,  of  the  money,  goods 
and  chattels  of  one  G.  F.,  and  from  the  said  G.  F.,"  is  a  suffi- 
cient averment  of  property  in  the  said  G.  F.,  the  person  from 
whom  they  were  stolen,  after  verdict,  for  the  words  money, 
goods  and  chattels  may  be  rejected  as  surplusage. 

A  general  description  of  a  bank-note  cuiTent  in  the  United 
States  is  sufficient  in  the  indictment  for  the  larceny  thereof. 

See  AngeVs  Case,  2  Va.  Cases,  228,  cited  ante,  3707. 

In  Ponieroy's  Case,  2  Va.  Cases,  342,  decided  by  the  General 
Court,  June,  1823,  it  was  held :  The  law  which  made  it  felony  to 
steal  any  bank-note  embraced  any  available  chose  in  action 
bearing  that  name.  That  law  being  re-enacted  in  1819,  should 
not  be  taken  to  be  altered  by  implication  when  incorporated  wdth 
other  laws  on  the  same  subject,  unless  that  implication  be  unop- 
posed by  matters  calling  for  the  original  construction. 

The  legislature  did  not  mean  to  restrict  the  meaning  of  the 
term  "  bank-note  "  to  those  of  chartered  banks,  because  it  makes 
the  stealing  "  of  any  other  writing  or  paper  of  value "  to  be 
larceny,  which  expression  would  include  any  available  chose  in 
action  called  a  bank-note.  The  term  "bank-note"  ought  not, 
therefore,  to  be  considered  in  this  restricted  sense. 

To  support  the  allegation  in  an  indictment,  that  the  bank- 
notes purport  on  their  faces  to  be  notes  of  certain  banks,  the 
notes  produced  in  evidence  must  correspond  therewith. 

When  an  indictment  charges  that  the  prisoner  committed  a 
larceny  of  certain  bank-notes,  "purporting  on  their  faces  to  be, 
and  being  bank-notes  of  and  issued  by  banks  chartered,"  etc., 
the  latter  part  of  the  charge  may  be  rejected  as  surplusage,  be- 
cause it  constitutes  an  independent  allegation  of  an  immaterial 
fact,  and  the  fact  constituting  the  offence  is  fully  charged  with- 
out it.  It  is  not,  therefore,  necessary  in  such  case  to  give 
proof  of  the  charters  of  those  banks. 


Citations  to  the  Code  op  Virginia.  987 

The  words,  "  or  any  otlier  writing  or  paper  of  value,"  furnish 
a  good  rule  for  limiting  and  explaining  the  words,  "warrant  or 
certificate,"  in  the  same  section ;  which  mean  papers  of  that  de- 
scription being  of  value  and  capable  of  conversion. 

In  Moore's  Case,  2  Leigh,  701,  decided  June,  1830,  it  was 
held,  p.  706 :  In  an  indictment  for  larceny  of  bank-notes,  it  is 
not  indispensably  necessary  to  produce  the  stolen  notes  upon 
the  trial. 

The  reference  to  13  Grat.,  757,  is  to  Hunt's  Case,  cited  svpra, 
Section  3707. 

See  LeftwicKs  Case,  20  Grat.,  716,  cited  ante.  Section  3707. 

In  Adams's  Case,  23  Grat.,  949,  decided  March,  1873,  it  was 
held :  In  an  indictment  for  stealing  bank-notes  it  is  sufl&cient  to 
state  that  the  notes  were  for  a  certain  sum  of  money,  without 
stating  their  value. 

In  such  a  case  since  the  statute,  the  value  of  the  bank-notes 
is  not  traversable. 

See  Johnsons  Case,  24  Grat.,  555,  cited  ante.  Section  3707. 

For  the  reference  to  32  Grat.,  866  and  899,  see  supra.  Section 
3707. 

Section  3714. 

In  Rutherford's  Case,  2  Va.  Cases,  141,  decided  by  the  General 
Court,  November,  1818,  it  was  held :  The  receiving  of  a  stolen 
bank-note  is  not  the  receiving  of  stolen  goods  within  the  mean- 
ing of  the  statute. 

In  Dowdy's  Case,  9  Grat.,  727,  decided  August  16,  1852.  An 
indictment  containing  several  counts,  one  for  larceny,  others  for 
receiving  stolen  goods,  knowing  them  to  have  been  stolen,  and 
others  for  aiding  another  person  to  conceal  stolen  goods,  know- 
them  to  have  been  stolen ;  the  charges  in  all  the  counts,  how- 
ever, relate  to  the  same  goods  which  in  different  counts  are  laid 
to  be  the  goods  of  different  persons  or  of  a  person  unknown. 
Held :  It  is  not  a  case  in  which  the  court  should  quash  some  of 
the  counts,  or  compel  the  prosecution  to  elect  on  which  count 
the  prisoner  shall  be  tried. 

See  Price's  Case,  21  Grat.,  846,  cited  ante.  Section  3707. 

The  reference  to  24  Grat.,  31,  is  an  error. 

See  Trodgon's  Case,  31  Grat.,  862,  cited  ante,  3707. 

See  Ileys's  Case,  32  Grat.,  946  and  950,  cited  ante,  3707. 

Section  3716. 
See  Shinn's  Case,  32  Grat.,  899,  cited  a7ite,  3707. 

Section  3717. 
In  Smith's  Case,  4  Grat.,  532,  decided  June,  1847,  by  the 
General  Court,  it  was  held :     It  is  not  necessary  that  the  party 


988  Citations  to  the  Code  of  Yirginia. 

charged  with  embezzlement  should  be  the  captain  of  the  boat 
to  bring  his  oflfence  within  the  statute. 

Section  3720. 

See  Walker's  Case,  8  Leigh,  743,  cited  ante.  Section  3707. 
Section  3722. 

In  Speer's  Case,  2  Va.  Cases,  65,  decided  by  the  General  Court, 
June,  1817,  it  was  held :  The  false  passing  as  a  true  note  a  false 
and  forged  note,  purporting  to  be  a  note  of  a  bank  (which  bank 
never  existed),  and  procuring  goods  by  means  thereof,  is  not 
such  an  offence  as  comes  within  the  act  to  prevent  the  deceit- 
fully obtaining  goods,  etc.,  by  privy  token  or  counterfeit  letters, 
but  it  is  a  public  cheat  indictable  at  common  law  if  the  defend- 
ant knew  that  it  was  such  false  note,  and  it  is  necessary  to  aver 
in  such  case  the  scienter  in  the  indictment. 

See  LeftwicKs  Case,  20  Grat.,  716,  cited  ante,  Section  3707. 

See  Anahle's  Case,  24  Grat.,  563,  cited  «n^ey.  Section  3707. 

In  DulVs  Case,  25  Grat.,  965,  decided  January,  1875,  it  was 
held:  If  P.  &  L.,  at  the  house  of  the  accused,  by  the  use  of 
false  pretenses,  obtained  from  F.  the  sum  of  five  hundred  and 
seventy  dollars,  the  accused  is  not  guilty  of  the  offence  unless 
he  was  present,  aiding  and  abetting  therein,  or  suffered  or  per- 
mitted the  said  P.  &  L.  to  use  said  house,  with  knowledge  that 
they  intended  to  use  the  same  for  the  employing  of  such  pre- 
tenses. But  if  the  accused  was  within  easy  call,  with  intent  to 
aid  or  assist  them  in  their  purpose,  or  in  escaping,  or  in  get- 
ting rid  of  or  misleading  the  person  from  whom  such  money 
was  obtained,  that  is  a  present  aiding  and  abetting,  and  the 
accused  is  as  guilty  as  if  he  were  personally  present.  The 
obtaining  money  by  false  pretenses  is  made  larceny  by  the 
statute ;  and  the  penalty  for  the  offence  is  the  same  as  in  other 
cases  of  larceny. 

On  an  indictment  for  larceny,  the  clerk  charges  the  jury  in 
the  usual  form.  If  on  the  trial  it  appears  that  the  money 
charged  to  have  been  stolen  was  obtained  by  false  pretenses, 
another  charge  made  by  the  clerk  is  not  necessary  nor  proper. 

In  lay's  Case,  28  Grat.,  912,  decided  January,  1877,  it  was 
held :  P.  is  indicted  for  the  larceny  of  two  hundred  and  eight 
dollars  of  notes  of  United  States  currency,  the  property  of  R. 
The  proofs  refer  to  F.'s  obtaining  money  from  R.  by  false  pre- 
tenses. To  sustain  the  prosecution  the  Commonwealth  must 
prove  every  fact  which  would  be  required  to  be  alleged  in  an 
indictment  for  obtaining  money  on  false  pretenses.  In  such  an 
indictment  it  would  be  a  material  allegation  that  the  money  was 
obtained  by  the  false  pretenses  alleged,  and  therefore  it  is  neces- 
sary to  be  proved  under  the  indictment  for  larceny  in  order  to 
a  conviction. 


Citations  to  the  Code  of  Virginia.  989 

The  false  pretenses,  either  with  or  without  other  causes,  must 
have  had  a  decisive  influence  upon  the  mind  of  the  owner,  so 
that  without  their  weight  he  would  not  have  parted  mth  the 
property. 

Unless  the  selling  of  the  property  by  F.  to  R.  was  by  false 
pretenses,  with  intent  to  defraud  the  buyer,  the  case  is  not  within 
the  statute.  Therefore  the  fraudulent  intent  must  have  existed 
at  the  time  false  pretenses  were  made  by  which  the  money  was 
obtained. 

In  the  absence  of  proof  that  such  money  as  is  charged  in  the 
indictment  to  have  been  stolen  was  received  by  the  prisoner,  he 
cannot  be  properly  convicted. 

See  TrodgonHs  Case,  31  Grat.,  862,  cited  arite,  Section  3707. 

Section  3729. 

Reference  to  2  Rand.,  791,  error;  no  such  page. 

In  Macliiis  Case,  3  Leigh,  809,  decided  by  the  General  Court, 
July,  1831,  it  was  held :  The  statute  of  1822-23,  Chapter  34, 
does  not  authorize  a  criminal  prosecution  for  killing  dogs  be- 
longing to  another. 

In  IsraeVs  Case,  4  Leigh,  675,  decided  by  the  General  Court, 
December,  1833.  Indictment  at  common  law,  charging  de- 
fendant with  reselling  property  that  had  been  distrained  by  a 
sheriff  for  public  dues  from  a  bailee,  to  whose  safe-keeping  the 
sheriff  had  committed  it,  without  charging  that  the  defendant 
knew  in  what  right  the  bailee  held  it.  Held :  Indictment  de- 
fective for  not  averring  that  the  defendant  had  such  knowledge ; 
and  this  defect  is  not  cured  by  verdict  by  the  statute  of  jeofails 
in  criminal  cases. 

In  PercaviVs  Case,  4  Leigh,  686,  decided  by  the  General  Court, 
July,  1834.  Upon  an  indictment  on  the  statute  of  1822-23, 
the  jury  find  in  a  special  verdict  that  defendant  shot  and  killed 
hogs,  the  property  of  another,  the  hogs  being  on  the  defendant's 
own  land  at  the  time  of  his  shooting  and  killing  them.  Held : 
The  verdict  is  defective  and  insufficient  in  not  finding  the  essen- 
tial ingredients  required  by  the  statute  to  constitute  the  misde- 
meanor, viz. :  that  defendant  killed  the  hogs  "  knowingly  and 
wilfully,  without  lawful  authority." 

The  provisions  of  that  statute  are  not  confined  to  property 
ejxisdem  generis' with,  that  specially  there  enumerated,  and  the 
circumstance  of  the  property  destroyed  being  at  the  time  on  de- 
fendant's land  does  not  take  the  case  out  of  the  statute. 

In  ItatcUfes  Case,  5  Grat.,  657,  decided  June,  1848,  by  the 
General  Court,  it  was  held :  An  indictment  which  charges  that 
defendant  knowingly  and  wilfully  removed  a  fence  from  the 
lands  of  P.,  and  did  injure  and  expose  the  growing  crop  of  P. 
then  on  said  lands,  charges  but  one  offence,  and  is  valid. 


990  Citations  to  the  Code  of  Virginia. 

If  the  defendant  removed  the  fence  under  a  claim  of  right, 
believing  it  to  be  his  own,  and  that  he  had  a  hona  fide  right  to 
it,  he  committed  no  offence  against  the  statute. 

In  Davis's  Case,  17  Grat.,  617,  decided  February  12,  1867,  it 
was  held :  The  killing  of  a  dog  is  not  an  indictable  offence. 

CHAPTEE  CLXXXII. 

Section  3733. 

In  Foulkess  Case,  2  Rob.,  836,  decided  December,  1843,  by 
the  General  Court,  it  was  held :  Upon  a  trial  for  forgery  of  a 
written  instrument,  the  Commonwealth  may,  without  producing 
as  a  witness  the  party ^by  whom  the  instrument  purports  to  be 
signed,  and  without  accounting  for  his  absence,  prove  by  the 
evidence  of  other  witnesses  that  the  instrument  is  not  genuine ; 
such  evidence,  not  being  in  its  nature  secondary  to  that  of  the 
party  whose  signature  is  in  question. 

On  trial  for  an  indictment  for  forgery  of  a  letter  of  credit 
with  intent  to  defraud  W.  and  W.,  the  Commonwealth  proves 
that  a  draft  presented  by  the  prisoner  to  W.  and  W.  at  the 
same  time  with  the  letter  of  credit,  had  been  filed,  together 
with  an  indictment  against  the  prisoner  for  forging  the  same, 
with  the  clerk  of  the  court,  who,  upon  making  search  for  the 
draft  among  the  papers  in  his  office,  has  been  unable  to  find 
it,  and  thereupon  the  Commonwealth  offers  secondary  evi- 
dence of  the  contents  of  the  draft;  no  notice  having  been  given 
to  the  prisoner,  before  the  jury  was  impaneled,  of  any  inten- 
tion to  offer  such  evidence.  Held :  The  foundation  so  laid  for 
the  admission  of  the  secondary  evidence  is  sufficient. 

Indictment  for  forging  with  intent  to  defraud  W.  and  W.,  a 
letter  in  the  following  terms : 

Nottoway,  April  24, 1841. 

Gent.:  Agreeable  to  Mr.  "Wm.  J.  Watkin's  request,  I  take 
pleasure  in  making  you  acquainted  with  his  name,  and  would 
say  to  you  that  he  is  very  extensively  engaged  in  the  manufac- 
turing of  tobacco,  and  has  made  some  large  purchases,  and 
says  that  he  wishes  to  patronize  you  (on  my  recommendation). 
You  may  be  assured  that  whatever  he  engages  to  do  he  will  cer- 
tainly perform.  He  says  it  is  probable  that  he  will  want  one 
thousand  dollars  by  the  1st  of  May  to  meet  his  engagements, 
and  if  he  apply  for  the  amount  I  have  no  doubt  but  you  will 
accommodate  him.  The  roads  are  in  such  condition  that  it  is 
impossible  to  get  any  produce  to  market.  Write  me  a  few  lines 
by  Mr.  Watkins,  and  say  what  the  chance  is  for  a  rise  in  to- 
bacco. Tour  compliance  with  the  above  will  very  much  oblige 
your  obedient  servant, 

Joseph  M.  Foulkes. 


Citations  to  the  Code  of  Virginia.  991 

P.  S. — Mr,  Watkins  prefers  giving  a  negotiable  note  payable 
in  Petersburg  Exchange  Bank,  where  he  can  always  have  an 
•opportunity  of  sending  at  the  shortest  notice  and  draw.  He  is  not 
3.  gentleman  of  low,  mean  degree,  but  one  that  is  a  perfect  gen- 
tleman in  every  sense  of  the  word.  I  am  confident,  as  I  have 
observed  to  him,  that  you  will  either  let  him  have  the  money,  or 
•endorse  for  him. 

J.  M.  F. 

Held :  This  is  not  a  writing  whereof  forgery  can  be  committed, 
■either  at  common  law  or  under  the  statute. 

In  Chalwons  Case,  20  Grat.,  733,  decided  January,  1871,  it 
was  held :  Upon  a  trial  for  forgery,  to  prove  that  the  paper  was 
forged,  a  witness  was  introduced,  who  said  that  he  knew  H.,  the 
party  whose  signature  was  in  question  and  who  was  dead  about 
two  years,  was  his  tenant,  had  seen  him  write,  think  he  knew 
his  handwriting  tolerably  well,  but  could  not  swear  to  a  particu- 
lar signature  as  his  without  knowing  the  fact,  though  he  had 
sufl&cient  knowledge  or  recollection  of  his  signature  to  enable 
him  to  give  an  opinion  as  to  the  genuineness  of  his  signature, 
though  he  would  not  swear  absolutely  about  it ;  says,  I  think  it 
is  not  his  handwriting,  but,  at  the  same  time,  I  cannot  say  on 
oath  positively  it  is  not.     This  is  admissible  evidence. 

On  such  a  trial  the  Commonwealth  may  prove  that  H.  was 
prompt  in  the  payment  of  debts,  and  that  he  owned  a  large  pro- 
perty, real  and  personal,  and  was  doing  a  good  business. 

Forgery  of  a  paper  may  be  by  performing  the  act  in 
person,  or  by  being  present,  procuring  and  assisting  in  the 
forgery. 

Uttering  a  forged  paper  may  be  proved  by  showing  that  the 
prisoner  attempted  to  employ  as  true  the  forged  writing,  with  a 
knowledge  at  the  time  of  the  said  attempt  that  the  same  was 
forged  with  intent  to  fraud ;  and  any  assertion  or  declaration  by 
word  or  act  that  the  forged  writing  is  good,  with  such  knowledge 
or  intent,  is  an  uttering  or  attempt  to  employ  as  true  the  said 
writing,  if  such  assertion  or  declaration  was  made  in  the  prose- 
cution of  the  purpose  of  obtaining  the  money  mentioned  in  the 
said  writing. 

To  convict  of  forgery  the  jury  must  be  governed  entirely  by 
the  testimony  before  them,  and  they  must  not  presume  the  guilt 
of  the  accused  by  reason  of  his  failure  or  neglect  to  produce 
evidence  in  his  own  behalf;  but  if  the  jury  believe  that  it  is  in 
the  power  of  the  accused  to  produce  evidence  in  elucidation  of 
the  subject-matter  of  the  charge  against  him,  then  his  failure  to 
produce  such  evidence  may  be  considered  by  the  jury  in  con- 
nection Avith  the  other  facts  proved  in  the  case. 

The  forgery  charged  was  the  note  of  H.,  an  unnaturahzed 


992  Citations  to  the  Code  op  Virginia. 

foreigner.  The  forging  it  was  in  fraud  of  the  administrator  of 
H.,  and  the  heirs. of  H.,  if  he  had  any,  or  the  State,  if  he  had 
none. 

The  bringing  the  suit  at  law,  as  counsel  upon  the  forged  note, 
and  recovering  judgment  thereon,  and  the  filing  a  bill  to  enforce 
payment  of  the  judgment  out  of  the  real  estate  of  H.,  and  hav- 
ing the  same  sold  and  receiving  the  proceeds,  the  same  being 
done  with  knowledge  that  the  note  was  a  forgery,  was  an  at- 
tempt to  employ  the  said  note  as  true  within  the  meaning  of  the 
statute. 

Though  the  suit  at  law  was  brought  in  the  County  Court  of 
Henrico,  and  the  suit  in  equity  was  in  the  Circuit  Court  of 
Henrico,  yet  as  both  these  courts  were  held  within  the  limits 
of  the  city  of  Richmond,  and  the  prisoner  lived  in  the  city,  the 
Hustings  Court  of  the  city  had  jurisdiction  to  try  the  prisoner. 

In  Sands's  Case,  20  Grat.,  800,  decided  January,  1871,  it  was 
held:  On  the  trial" for  the  forgery  of  a  note  of  H.,  who  is  dead, 
the  Commonwealth  may  prove  that  H.  was  prompt  in  the  pay- 
ment of  his  debts,  and  that  he  owned  a  large  property,  real  and 
personal,  and  was  doing  a  good  business.  To  convict  a  prisoner 
of  uttering  or  attempting  to  employ  as  true  a  forged  writing,  it 
must  be  shown  that  the  accused  himself  uttered  or  attempted  to 
employ  as  true  the  said  forged  writing,  or  was  present  at  the 
time  such  forged  writing  was  uttered  or  attempted  to  be  em- 
ployed as  true,  by  some  other  person  aiding  and  assisting  such 
person  to  utter  or  employ  the  same  as  true,  and  it  must  be 
further  shown  that  the  accused  knew  at  the  time  that  the  said 
writing  was  in  fact  forged ;  and  that  such  uttering  and  attempt- 
ing to  employ  as  true  was  made  or  done  by  him  with  the 
intent  to  defraud ;  but  any  assertion  or  declaration,  by  word  or 
act,  directly  or  indirectly,  that  the  forged  writing  is  good,  with 
such  knowledge  and  intent,  is  an  uttering  or  attempting  to  em- 
ploy as  true  the  said  writing,  provided  that  such  assertion  or 
declaration  was  made  in  the  prosecution  for  the  purpose  of 
obtaining  the  money  mentioned  in  the  said  writing. 

In  Coleman's  Case,  25  Grat.,  865,  decided  March,  1874,  it  Avas 
held :  A  public  record  must  be  a  written  memorial,  intended  to 
serve  as  evidence  of  something  written,  said  or  done,  made  by 
a  public  officer  authorized  by  law  to  make  it,  but  that  authority 
need  not  be  derived  from  express  statutory  enactment. 

Whenever  a  written  record  of  the  transactions  of  a  public 
officer  in  his  office  is  a  convenient  and  appropriate  mode  of 
discharging  the  duties  of  his  office,  it  is  not  only  his  right,  but 
his  duty,  to  keep  a  written  memorial,  whether  expressly  required 
to  do  so  or  not ;  and  when  kept  it  becomes  a  public  document, 
a  public  record,  belonging  to  the  office  and  not  to  the  officer. 

The  warrant  book  of  the  sinking  fund,  kept  by  the  second 


Citations  to  the  Code  of  Virginia.  993 

auditor  in  his  office,  of  the  transactions  of  the  commissioners  of 
the  sinking  fund  of  the  State,  is  a  public  record,  and  is  of  itself 
evidence  of  what  it  contains,  to  be  considered  with  the  other 
evidence  in  the  case. 

Section  3735. 

See  Speer's  Case,  2  Va.  Cases,  65,  cited  ante,  Section  3722. 

In  Hensletjs  Case,  2  Va.  Cases,  149,  decided  by  the  General 
Court,  June,  1819,  it  was  held:  The  false  uttering  of  a  forged 
bank-note  of  another  State  or  district  may  be  prosecuted  as  the 
false  uttering  of  a  promisory  note  for  the  payment  of  money 
under  the  statute. 

In  RasnicMs  Case,  2  Va.  Cases,  356,  decided  by  the  General 
Court,  June,  1823,  it  was  held :  An  indictment  which  charges  a 
prisoner  with  the  offences  of  falsely  making,  forging  and  coun- 
terfeiting; of  causing  and  procuring  to  be  made,  forged  and 
counterfeited,  and  of  willingly  acting  and  assisting  in  the  said 
false  making,  forging  and  counterfeiting,  is  a  good  indictment^ 
though  all  of  these  charges  are  in  a  single  count,  the  words  of 
the  statute  being  pursued,  and  there  being  a  general  verdict  of 
guilty,  judgment  ought  not  to  be  arrested  on  the  ground  that 
the  offences  are  distinct. 

One  who  brightens  base  pieces  (which  are  brought  to  him 
ready  formed  with  the  impression  and  appearance  of  dollars, 
except  that  they  are  of  a  dark  color,  like  lead,  and  not  then  pas- 
sable) by  boiling  them  in  lye  and  rubbing  them  with  a  woolen 
cloth,  and  subjecting  them  to  other  processes,  thereby  render- 
ing them,  by  their  resemblance  to  real  dollars,  more  fit  for  circu- 
lation, is  guilty  of  counterfeiting.  He  completes  the  offence, 
and  thereby  subjects  to  the  penalties  of  the  law,  not  only  him- 
self, but  all  who  acted  a  part  and  were  present  and  assisting  at 
the  transaction  from  beginning  to  end,  or  who  did  do  anything 
thought  necessary  by  themselves  to  impose  on  the  public,  by 
making  the  base  coin  resemble  the  true. 

In  brown's  Case,  2  Leigh,  769,  decided  by  the  General 
Court,  November,  1830.  An  indictment  for  passing  a  counter- 
feited bank-note  to  a  slave,  with  intent  to  defraud  the  bank,  is 
good. 

In  Hurry's  Case,  5  Leigh,  720,  decided  July,  1835,  by  the 
General  Court.  Upon  an  indictment  for  passing  a  counterfeit 
note  of  the  Bank  of  Louisville,  without  alleging  that  the  bank 
is  a  chartered  bank,  or  that  there  is  no  such  bank,  and  without 
alleging  that  the  note  was  passed  "to  the  prejudice  of  another's 
right,"  or  "for  the  prisoner's  own  benefit,  or  for  the  benefit  of 
another."  Held :  The  offence  so  charged  is  a  felony  within  the 
meaning  of  the  statute,  and  the  indictment  is  good  and  sufficient. 

In  BucUand^s  Case,  8  Leigh,  753,  decided  by  the  General 
63 


994  Citations  to  the  Code  of  Virginia. 

Court,  June,  1837.  It  is  a  felony,  under  the  statute,  to  pass  a 
counterfeit  note  of  the  Bank  of  the  United  States,  dated  at  a 
time  when  that  bank  was  in  existence,  though  at  the  time  of 
passing  the  note  the  charter  of  the  bank  had  expired. 

Indictment  for  passing  a  counterfeit  note  charges  that  the 
prisoner,  on  a  particular  day,  at  the  county  of  M.  and  within 
the  jurisdiction  of  the  court,  being  possessed  of  the  note,  feloni- 
ously did  pass  the  same,  well  knowing  it  to  be  a  counterfeit  at 
the  time  he  passed  it.  Held :  The  time  and  place  of  passing  the 
note,  and  of  the  scienter,  are  set  forth  with  sufficient  certainty. 

In  setting  out  a  counterfeit  bank-note  in  hoec  verba  in  an  in- 
dictment for  feloniously  passing  the  same,  an  endorsement,  ap- 
pearing to  have  been  made  on  the  note  after  it  was  passed,  is 
properly  omitted,  and  the  omission  is,  therefore,  no  ground  for 
the  objection  of  variance.  On  the  trial  of  an  indictment  for 
passing  a  counterfeit  bank-note,  the  prisoner  moves  to  exclude 
the  note  produced  from  going  in  evidence  to  the  jury,  on  the 
ground  that  the  name  of  one  of  the  firm  of  engravers,  set  out  in 
the  description  of  the  note  in  the  indictment,  does  not  appear 
on  the  note  produced;  the  attorney  for  the  Commonwealth 
proves  that  when  he  drew  the  indictment  he  had  been  able  to 
make  out  the  name  on  the  note,  from  his  knowledge  that  one  of 
the  firm  of  engravers  bore  that  name,  though  he  cannot  say  he 
would  have  been  able  to  do  so  without  the  knowledge  of  that 
fact;  but  that  the  word  had  since  become  indistinct,  he  sup- 
poses, by  handling  the  note.  The  court  thereupon  overrules 
the  motion  to  exclude,  and  permits  evidence  to  be  given  of  the 
passing  of  the  note  produced.  Held :  It  was  right  for  the  court 
to  do  so. 

In  Kirk's  Case,  9  Leigh,  627,  decided  by  the  General  Court, 
December,  1838,  it  was  held:  In  a  prosecution  for  passing  a 
counterfeit  coin  to  a  person  who  resides  in  another  State,  if  a 
suh2)(Bna  for  such  person  as  a  witness  has  been  issued,  and  re- 
turned "  not  found,"  the  fact  of  the  passing  and  the  counterfeit 
character  of  the  coin  may  be  proved  without  producing  the 
coin  at  the  trial. 

It  seems  that  in  a  prosecution  for  passing  a  counterfeit  coin, 
the  prosecutor  is  at  liberty  to  prove  the  fact  of  the  passing,  and 
the  counterfeit  character,  of  the  coin,  without  either  producing 
the  coin  or  accounting  for  its  non-production. 

In  Page's  Case,  9  Leigh,  683,  decided  by  the  General  Court, 
December,  1839.  A  prisoner  is  committed  for  examination,  is 
examined  and  remanded  by  the  examining  court  for  trial,  for 
"feloniously  using  and  employing  as  true  for  his  own  benefit 
a  certain  counterfeit  note,  well  knowing  the  same  to  be  counter- 
feit. Held :  An  indictment  for  forging  the  note  is  not  warranted 
by  the  examination  and  must  be  quashed. 


Citations  to  the  Code  of  Virginia.  995 

An  indictment  (described  in  the  record  of  the  finding  and  in 
the  entry  of  the  arraignment  as  an  indictment  for  forgery)  con- 
tains, First,  A  count  for  forging  and  counterfeiting  a  note,  and, 
Second,  A  count  for  feloniously  using  and  employing  as  true  a 
counterfeit  note ;  verdict  finds  the  prisoner  guilty  of  forgery  as 
alleged  in  the  indictment.  Held :  An  acquittal  must  be  entered 
on  the  second  count. 

In  Scotfs  Case,  1  Rob.  695  (2d  edition,  752),  decided  by  the 
General  Court,  it  was  held:  An  indictment  on  the  statute 
charging  that  the  prisoner  did  knowingly  have  in  his  custody, 
without  lawful  authority  or  excuse,  "one  die  or  instrument" 
for  the  purpose  of  producing  and  impressing  the  stamp  and 
similitude  of  the  current  silver  coin  called  a  half-dollar  (no  fur- 
ther describing  the  die  or  instrument)  is  insufiicient. 

For  Fonll-es's  Case,  2  Eob.,  836,  here  cited,  see  ante,  Section 
3733. 

In  Cady's  Case,  10  Grat.,  776,  decided  January,  1854,  it  was 
held :  On  a  prosecution  for  uttering  and  attempting  to  employ 
as  true  a  forged  note  purporting  to  be  the  note  of  the  Bank  of 
Delaware  in  Pennsylvania,  a  banking  company  authorized  by 
the  law^  of  Pennsylvania,  the  existence  of  such  a  bank  may  be 
proved  by  parol  evidence.  The  averment  that  it  was  authorized 
by  the  laws  of  Pennsylvania  is  surplusage,  and  need  not  be 
proved.  The  time  when  the  offence  is  alleged  in  the  indictment 
to  have  been  committed  being  stated  in  figures,  is  no  error. 

In  PowelVs  Case,  11  Grat.,  822,  decided  October,  1854,  it  was 
held  :  The  words  "  to  the  prejudice  of  another's  rights,"  in  re- 
lation to  forgeries,  are  descriptive  not  of  the  oflfence,  but  of  the 
writings  of  which  forgery  may  be  committed ;  and  it  is  not, 
therefore,  necessary  that  they  shall  be  inserted  in  the  indict- 
ment in  describing  the  offence  charged. 

The  maker  of  a  negotiable  instrument  passes  it  to  the  payee, 
with  the  name  of  a  third  pei*son  endorsed  upon  it,  which  name 
he  forged ;  the  forging  of  the  name  endorsed  upon  the  paper 
constitutes  the  offence  of  forgery. 

The  description  of  the  writing  in  the  indictment  as  the  en- 
dorsement of  the  person  whose  name  is  forged  will  not  vitiate 
the  indictment,  though  the  simulated  liability  might  not  be  that 
of  technical  endorsei*,  but  of  a  different  character. 

In  Wash's  Case,  16  Grat.,  530,  decided  October  29,  1861,  it 
was  held :  In  a  prosecution  for  uttering  counterfeit  coin,  the 
guilty  knowledge  of  the  prisoner  that  the  coin  was  counterfeit  is  a 
fact  to  be  proved,  and  there  can  be  no  presumption  of  law  from 
the  existence  of  other  facts  of  this  guilty  knowledge,  though 
there  may  be  a  presumption  of  fact. 

In  Jett's  Case,  18  Grat.,  933,  decided  October,  1867,  it  was 
held:  A  State  court  has  jurisdiction  to  punish  an  act  made  an 


996  Citations  to  the  Code  of  Virginia. 

offence  by  the  laws  of  the  State,  though  the  same  act  is  made 
an  offence  by  a  law  of  the  Congress  of  the  United  States. 

A  State  court  has  jurisdiction  to  punish  the  offence  of  at- 
tempting to  pass  a  forged  note  purporting  to  be  a  note  of  one 
of  the  national  banks  of  the  United  States. 

See  Sanc^s  Case,  20  Grat.,  800,  cited  ante,  Section  3733. 

Section  3737. 

In  Kearjis's  Case,  1  Va.  Cases,  109,  decided  by  the  General 
Court,  it  was  held :  Where  in  the  forgery  of  an  order  on  the 
treasury  of  the  State  the  name  of  one  of  the  auditors  is  incor- 
rect, there  is  no  forgery. 

In  Ervin  &  Lewis's  Case,  2  Ya.  Cases,  337,  decided  by  the 
General  Court,  June,  1823,  it  was  held :  A  charge  that  a  forgery 
of  bank-notes  was  committed  with  intent  to  injure  "divers  good 
citizens  of  the  Commonwealth  and  others,"  to  the  jury  unknown,, 
without  setting  out  an  intent  to  injure  the  president,  directors, 
and  company  of  those  banks,  or  of  any  particular  person,  or 
body  politic,  by  name,  is  good  after  verdict. 

In  Htiffmaiis  Case,  6  Eand.,  685,  decided  by  the  General 
Court,  November,  1828,  it  was  held :  If  the  examining  Court  re- 
mand to  the  superior  court  for  trial  a  prisoner  charged  with 
forgery,  the  prisoner  may  be  indicted  in  the  superior  court,  not 
only  for  the  forgery,  but  also  for  procuring  the  instrument  to  be 
forged,  and  for  acting  and  assisting  in  the  forgery. 

It  is  not  necessary  to  set  forth  in  the  count  the  persons  whom 
the  prisoner  procured  to  forge  the  instrument,  or  with  whom  he 
acted  and  assisted  in  the  forgery.  A  general  description  in  tho 
words  of  the  statute  is  sufficient.  An  indictment  which  charges 
that  the  prisoner  caused  and  procured  a  certain  instrument  to- 
be  forged,  and  willingly  assisted  in  the  forgery,  etc.,  is  to  be  un- 
derstood as  charging  that  he  caused  it  to  be  done  in  his  pres- 
ence, and  that  he  aided,  being  present,  in  other  words,  as 
charging  him  as  principal  in  the  second  degree,  and  not  as 
accessory. 

If  an  examining  court  remand  a  prisoner  on  a  charge  of  pass- 
ing a  forged  note,  he  may  be  indicted  for  passing  it,  knowing  it 
to  be  forged. 

In  a  bill  of  indictment  with  three  counts,  if  in  the  third  count 
it  is  omitted  to  be  stated  that  the  grand  jury  "on  their  oath" 
present  (the  first  two  counts  being  regular  in  that  respect),  the 
objection  is  obviated  by  the  fact  that  the  record  states  that  the 
grand  jury  were  sworn  in  open  court. 

A  forged  paper  is  passed  by  a  prisoner  bearing  date  in  1828; 
immediately  after,  the  prisoner,  with  the  knowledge  of  the 
holder,  alters  the  date  to  1827.  The  indictment  sets  forth  its 
tenor,  and  describes  it  as  dated  in  1827.     The  paper  is  proper 


Citations  to  the  Code  of  Vieginia.  997 

evidence  to  go  to  the  jury  in  support  of  the  indictment,  notwith- 
standing the  proof  that  it  bore  date  in  1828  when  passed. 

In  Martins  Case,  2  Leigh,  745,  decided  November,  1830,  it 
was  held :  Upon  the  trial  of  indictment  for  passing  counterfeit 
bank-notes,  proof  that  prisoner  had,  about  same  time,  passed 
another  note  of  same  kind,  which  was  thought  to  be  a  counter- 
feit, and  Avhich  he  took  back,  though  this  note  is  not  produced 
at  the  trial,  is  admissible  evidence  to  prove  the  scienter. 

In  a  criminal  prosecution  for  passing  a  counterfeit  note,  it  is 
not  necessary  to  prove  the  notes  to  be  counterfeit  by  an  officer 
of  the  bank  of  which  the  notes  are  counterfeited. 

See  Brown's  Case,  2  Leigh,  769,  cited  ante,  Section  3735. 

In  Pendleton's  Case,  4  Leigh,  694,  decided  by  the  General 
Court,  July,  1834,  it  was  held :  On  the  trial  of  indictment  for 
forgery  of  a  check  on  a  bank,  if  there  be  proof  rendering  it 
highly  probable  that  the  original  paper  has  been  lost  or  de- 
strojed,  though  this  was  not  done  by  the  accused  or  by  his 
procurement,  secondary  evidence  of  the  contents,  character  and 
description  of  the  paper  is  admissible  to  sustain  the  prosecu- 
tion. 

In  Ilendrick's  Case,  5  Leigh,  708,  decided  by  the  General 
Court,  December,  1834.  Upon  an  indictment  for  passing  a 
counterfeit  check  or  order  of  a  president  of  a  branch  of  the 
bank  of  the  United  States  on  the  cashier  of  the  bank,  payable 
to  K.  T.  or  order,  and  endorsed  by  R.  T.  to  bearer.  Held: 
That  whether  the  charter  of  the  bank  of  the  United  States  be 
constitutional  or  not,  and  whether  the  charter  authorizes  the 
issue  of  such  checks  or  orders  or  not,  the  counterfeiting  or  pass- 
ing counterfeits  of  such  checks  or  orders  is  felony  by  the 
statute,  and  though  the  offender  be  indictable  in  the  courts  of 
the  United  States  for  the  offence  against  the  laws  of  the  United 
States,  he  is  also  indictable  in  the  courts  of  Virginia  for  the 
offence  against  the  laws  of  the  State. 

On  the  trial  of  an  indictment  for  passing  a  counterfeit  bank- 
note or  check,  after  evidence  that  the  prisoner  passed  the  note, 
and  that  it  was  counterfeit,  evidence  that  it  was  counterfeit,  evi- 
dence that  the  prisoner  had  in  his  possession  and  attempted  to 
pass  other  counterfeit  notes  of  the  same  kind  to  other  persons 
the  day  after  he  passed  those  in  the  indictment  mentioned,  is 
admissible  to  prove  the  scienter. 

For  the  reference  to  5  Leigh,  720,  see  Murry's  Case,  quoted 
<znte,  Section  3735. 

See  BucJdand's  Case,  8  Leigh,  732,  cited  ante,  Section  3735. 

For  Foulkes's  Case,  2  Rob.,  837,  see  ante.  Section  3733. 

In  Perkins  s  Case,  7  Grat.,  651,  decided  June,  1851,  by  the 
General  Court.  An  indictment  for  forgery  charged  the  forgery 
of  a  negotiable  note,  and  set  it  out  in  hmc  verba,  without  setting 


9S8  Citations  to  the  Code  of  Virginia. 

out  the  endorsements  on  the  back  of  it.  On  the  trial,  when  tha 
note  was  offered  in  evidence,  it  was  objected  to  on  the  ground 
of  variance.  Held :  It  was  not  necessary  to  set  out  in  the  in- 
dictment the  endorsements  upon  the  note,  or  any  other  matter 
written  upon  the  same  paper,  constituting  no  part  of  the  note 
itself,  and  not  entering  into  the  essential  description  of  that  in- 
strument. 

The  note  said,  "  I  promise  to  pay,"  etc.  It  was  still  a  nego- 
tiable note,  though  a  bank  might  refuse  to  discount  it  because 
of  its  informality. 

After  the  case  had  been  submitted  to  the  jury  and  they  had 
retired  to  consider  of  their  verdict,  they  returned  into  court  and 
asked  the  court  to  instruct  them  as  to  whether  it  was  necessary 
that  they  should  be  satisfied  that  the  prisoner  did  actually  and 
personally  forge  the  paper  charged  in  the  indictment  in  order 
to  his  conviction.  The  court  instructed  them  that  either  the 
actual  forgery  by  the  prisoner,  or  his  actual  presence  aiding 
and  assisting  with  a  felonious  intent  when  the  forged  instru- 
ment was  made,  constituted  the  offence  of  forgery.  Held:  The 
instruction  being  responsive  to  the  inquiry  propounded  by  the 
jury,  even  if  it  was  an  abstract  proposition,  yet  as  the  jury  asked 
an  instruction  on  the  point,  and  the  instruction  given  correctly 
stated  the  law,  it  is  not  cause  for  setting  aside  the  verdict. 

See  Powell's  Case,  11  Grat.,  822,  cited  ante,  Section  3735. 

The  reference  to  31  Grat.,  862,  is  an  error. 

In  Tey^y's  Case,  87  Va.,  672,  decided  April  16,  1891,  it  was 
held :  This  section  predicates  the  offence  of  forgery  only  of  such 
writings  as  are,  or  may  be,  to  the  prejudice  of  another.  If  it  be 
not  so,  the  indictment  does  not  charge  an  offence. 

Section  3738. 

In  MartirCs  Case,  2  Leigh,  745,  decided  November,  1830. 
Upon  the  trial  of  an  indictment  against  M.,  for  passing  counter- 
feit bank-notes,  the  prisoner  appears  to  have  been  confederated 
with  one  L.  in  passing  counterfeit  notes,  and  present  when  L. 
passed  such  notes,  the  notes  so  passed  by  L.  are  produced  in 
evidence  against  the  prisoner.  Held :  They  are  proper  evi- 
dence. 

In  Spencer's  Case,  2  Leigh,  751,  decided  November,  1830,  it 
was  held :  Upon  trial  of  an  indictment  for  forging  bank-notes, 
the  fact,  if  proved,  of  the  forged  notes  mentioned  in  the  indict- 
ment, and  other  forged  notes  of  like  kind,  and  the  plates,  imple- 
ments, and  materials  for  forging  such  notes,  being  found  in  the 
prisoner's  possession,  i^  prima  facie  or  circumstantial  presump- 
tive evidence  that  the  prisoner  was  the  forger,  proper  to  be 
given  to  the  jury.  And  such  forged  notes,  etc.,  being  found  in 
possession  of  the  prisoner  in  the  county  of  B.,  are  like  prima 


Citations  to  the  Code  of  Virginia.  999 

fade  evidence,  proper  to  be  given  to  the  jury,  of  the  fact  that 
he  committed  the  forgery  there. 

For  reference  to  5  Leigh,  708,  see  HendricKs  Case,  quoted 
ante,  Section  3737. 

In  Scott's  Case,  14  Grat.,  687,  decided  August  20, 1858,  it  was 
held:  A  prisoner  is  examined  for  forging  and  counterfeiting 
twenty-four  pieces  of  silver  coin,  and  is  sent  to  the  circuit  court 
for  further  trial.  He  cannot  be  indicted  for  having  in  his  pos- 
session ten  or  more  pieces  of  coin,  with  intent  to  alter  and  em- 
ploy the  same  as  true.  An  indictment  under  the  statute  for 
feloniously  having  in  his  possession  more  than  ten  pieces  of 
forged  or  base  coin  mu^  allege  that  the  prisoner  had  them  in 
his  possession  at  the  same  time ;  and  the  charge  that  on  a  cer- 
tain day  he  had  them  in  his  possession  is  not  sufficient. 

There  are  counts  in  an  indictment  for  forging  and  counterfeit- 
ing coin,  and  also  a  count  for  feloniously  having  in  his  posses- 
sion twenty  pieces  of  forged  coin,  not  saying  "at  the  same 
time."  The  prisoner  having  moved  the  court  to  quash  the  last 
count,  which  is  overruled,  there  is  a  verdict  and  judgment  against 
him,  and  he  obtains  a  writ  of  error.  This  court,  holding  tliat  the 
count  is  bad  as  an  indictment  for  a  felony,  will  not  permit  it  to 
stand  as  a  count  for  a  misdemeanor,  but  will  reverse  the  judg- 
ment and  quash  the  count. 

CHAPTER  CLXXXIII. 

Section  3741. 

In  JRckmaii's  Case,  2  Va.  Cases,  323,  decided  November^ 
1822,  it  was  held :  In  a  prosecution  for  perjury,  if  the  indict- 
ment sets  forth  that  a  "  warrant  for  debt  due  by  account  for 
rent "  was  sued  out  by  the  defendant,  and  the  warrant  given  in 
evidence  shows  that  the  claim  was  not  for  rent,  but  for  other 
things,  this  is  such  a  variance  that  the  warrant  ought  not  to  be 
given  in  evidence. 

Stockley's  Case,  10  Leigh,  678  (2d  edition,  712),  here  cited, 
does  not  decide  what  is,  or  what  is  not,  perjury,  but  only  that 
perjury  can  be  committed  on  voh'  dire. 

In  heath's  Case,  1  Eob.,  729  (2d  edition,  796),  decided  by  the 
General  Court,  it  was  held :  After  a  verdict  of  conviction  for 
murder  in  the  first  degree,  the  prisoner  adduces  testimony  that 
two  of  the  jurors  who  tried  the  case,  and  who,  on  the  voir  dwe, 
declared  that  they  had  not  formed  or  expressed  any  opinion  as 
to  the  guilt  or  innocence  of  the  prisoner,  had,  in  fact,  previous 
to  the  trial,  expressed  decided  opinions  that  the  prisoner  was 
guilty  and  ought  to  be  hung ;  of  which  circumstance,  the  pris- 
oner alleges,  he  had  no  knowledge  until  since  the  verdict  was 
rendered;  and  on  this  ground  he  moves  to  set  aside  the  ver- 
dict.    Held: 


1000  Citations  to  the  Code  of  Virginia. 

1.  Such  inquiry  was  open,  and  tlie  evidence  admissible,  for 
the  purpose  of  showing  perjury  and  corruption  in  the  jurors. 

But,  2,  It  belonged  exclusively  to  the  judge  who  presided  at 
the  trial  to  weigh  the  conflicting  credibility  of  the  witnesses  ad- 
duced by  the  prisoner  and  of  the  jurors,  and  to  decide  whether, 
in  justice  to  the  prisoner,  and  upon  all  the  circumstances  of  the 
case,  a  new  trial  ought,  or  ought  not,  to  be  awarded. 

In  Thomas's  Case,  2  Rob.,  795,  decided  by  the  General  Court, 
June,  1843.  An  indictment  for  felony  in  giving  false  testimony 
before  a  grand  jury  charges  that  the  defendant,  being  duly 
sworn,  "did  depose  and  give  evidence  to  the  grand  jury  in  sub- 
stance and  to  the  effect  following"  (stating  the  testimony),  which 
said  evidence  was  wilfully  false  and  corrupt;  for  in  truth,  etc. 
(falsifying  the  facts  deposed  to) ;  "  and  so  the  defendant  did,  in 
manner  and  form  aforesaid,  commit  wilful  and  corrupt  perjury." 
On  general  demurrer  to  the  indictment,  held :  Here  is  no  suffi- 
cient averment  that  the  defendant  wilfully  or  corruptly  swore 
falsely,  and  the  indictment  is  defective  as  well  at  common  law 
as  under  the  statute. 

In  Roach's  Case,  1  Grat.,  561,  decided  December,  1844,  by 
the  General  Court.  A  demurrer  to  an  indictment  for  perjury 
was  sustained,  but  no  grounds  of  demuri'er  are  stated. 

In  Lodge's  Case,  2  Grat.,  579,  decided  December,  1845,  by 
the  General  Court,  it  was  held :  Indictments  for  perjury  in  Vir- 
ginia must  be  according  to  the  common  law. 

An  indictment  for  perjury  in  swearing  to  an  answer  in  chan- 
cery should  set  out  the  whole  bill  and  answer. 

In  Williamson's  Case,  4  Grat.,  554,  decided  December,  1847, 
by  the  General  Court,  it  was  held:  A  clerk  has  no  authority, 
when  applied  to  for  a  marriage  license,  to  examine  a  witness 
on  oath  as  to  the  age  of  the  parties. 

The  authority  of  a  clerk  to  administer  an  oath  out  of  court 
only  extends  to  cases  in  which,  without  regard  to  circumstances, 
the  making  the  affidavit  is  a  necessary  prerequisite  to  the  per- 
formance of  the  official  act  which  the  clerk  is  called  upon  to 
perform. 

The  swearing  falsely  before  the  clerk  that  a  person  applying 
for  a  marriage  license  is  over  the  age  of  twenty-one  years,  does 
not  constitute  the  offence  of  perjury.  But  if,  by  such  false  oath, 
the  person  applying  is  enabled  to  obtain  a  marriage  license,  and 
the  marriage  takes  place,  the  taking  the  false  oath  is  a  misde- 
meanor. 

In  Litton' 8  Case,  6  Grat.,  691,  decided  December,  1849,  by 
the  General  Court.  On  a  trial  of  a  warrant  for  debt  before  a 
justice,  founded  on  an  order  given  by  the  defendant,  he  makes 
oath  before  the  justice  that  he  did  not  sign  his  name  to  the 
order.     Upon  an  indictment  for  perjury  in  taking  this  oath. 


Citations  to  the  Code  of  Virginia.  1001 

iield  :  That  perjury  may  be  committed  in  taking  such  oath.  In 
such  case  the  court  should  not  quash  the  indictment,  but  should 
put  the  defendant  to  his  demun-er. 

In  Schwartz's  Case,  27  Grat.,  1025,  decided  November  23, 
1876.  S.  is  examined  as  a  witness  against  T.,  charged  with  the 
crime  of  rape.  He  is  asked  if  he  and  T.  had  not  agreed  to 
commit  the  rape,  and  if  he  did  not  hear  the  cries  of  the  girl 
whilst  T.  had  her  in  the  bushes ;  and  he  denies  both.  The  ex- 
amination is  interrupted  for  a  few  minutes,  and  the  witness  is 
retired  into  another  room,  where  he  states  to  two  'of  the  officers 
and  another  person  that  to  help  T.  he  had  sworn  falsely ;  and 
when  his  examination  i#  resumed  he  says  that  he  and  T.  had 
Agreed  to  commit  the  rape,  and  that  he  did  hear  the  cries  of  the 
girl.  S.  is  then  indicted  for  perjury  in  making  his  first  state- 
ment. There  is  no  evidence  against  him  but  his  own  state- 
ments.    Held :  His  statements  are  not  sufficient  to  convict  him. 

In  Mayhuslis  Case,  29  Grat.,  857,  decided  January,  1878,  it 
was  held :  The  act  authorizes  the  clerk  of  a  county  or  a  cor- 
poration court,  when  an  application  is  made  to  him  for  a  mar- 
riage license,  to  require  evidence  that  the  female  is  over  the  age 
of  twenty-one  years,  and  to  administer  an  oath  to  the  person 
giving  the  testimony. 

M.  is  prosecuted  for  subornation  of  perjury,  found  guilty,  and 
judgment  rendered  against  him.  At  the  same  term  of  the  court, 
but  after  the  conviction  of  M.,  G.  is  tried  for  the  perjury  and 
is  acquitted.  M.  then  moves  the  court  for  a  new  trial.  G. 
having  been  acquitted  of  the  perjury,  M.  should  have  a  new 
trial,  as,  if  G.  was  not  guilty  of  the  perjury,  M.  could  not  be 
guilty  of  subornation  of  perjury. 

Section  3742. 
The  case  referred  to  as  29  Grat.,  857,  will  be  found  supra, 
Section  3741. 

Section  3744. 

In  Callaghan's  Case,  2  Va.  Cases,  460,  decided  by  the  General 
Court,  June,  1825,  it  .was  held :  A  corrupt  agreement  between 
two  justices  of  the  peace,  A.  and  B.,  to  the  effect  following: 
That  A.  will  vote  for  C.  for  commissioner  of  the  revenue,  in 
consideration  that  B.  will  vote  for  D.  as  clerk ;  and  that  B.  will 
vote  for  D.  as  clerk  in  consideration  that  A.  will  vote  for  C.  as 
commissioner  of  the  revenue;  and  the  actual  voting  of  the  said 
two  justices,  in  pursuance  of  said  corrupt  agreement,  is  not  an 
-offence  within  the  statute  against  buying  and  selling  offices,  be- 
cause corrupt  bargains  and  sales,  prohibited  by  that  statute,  are 
those  by  which  the  party  bargaining  or  selling  is  to  receive 
some  profit,  or  some  assurance  of  profit,  directly  or  indirectly, 
to  himself.     But  such  corrupt  agreement  (and  the  execution  of 


1002  Citations  to  the  Code  of  Virginia. 

it)  is  a  misdemeanor  at  common  law,  for  which  an  information 
on  indictment  will  lie. 

In  NewelVs  Case,  2  Wash.,  88  (2d  edition,  119),  decided  at 
October  term,  1795,  it  was  held:  In  an  information  against  a 
justice  of  the  peace  for  bribery  in  an  election  for  a  clerk,  it  ought 
to  be  stated  with  certainty  that  an  election  was  held,  and  that 
at  that  election  the  vote  was  cast. 

Section  3749. 

In  Old's  Case,  18  Grat.,  915  and  924,  decided  October,  1867, 
it  was  held :  The  Code  punishes  the  omitting  or  delaying  to  per- 
form any  duty  pertaining  to  the  ofl&ce  of  one  who  is  authorized 
to  serve  legal  process. 

The  offence  punishable  by  the  act  is  the  omitting  or  delaying^ 
to  perform  any  duty,  etc.,  not  the  doing  any  act. 

The  presentment  should  follow  the  terms  of  the  statute  or 
must  use  terms  which  show  conclusively,  or  beyond  any  rational 
doubt  to  the  contrary,  that  the  accused  is  guilty  of  the  offence 
described  in  the  statute,  and  unless  this  is  done,  the  addition 
that  "  so  the  accused  did  receive  money  for  omitting  and  delay- 
ing to  perform  a  duty  pertaining  to  his  office  of  constable,"  etc., 
will  not  cure  the  defect. 

Section  3753. 

In  Lewis's  Case,  4  Leigh,  664,  decided  by  the  General  Court, 
July,  1833.  A  sheriff  is  not  liable  to  criminal  prosecution  for 
a  malfeasance  in  office  committed  by  his  deputy. 

The  Circuit  Court  of  Richmond  issues  a  capias  against  a  per- 
son there  indicted  of  felony,  which  is  directed  to  the  sheriff  of 
Essex,  and  by  him  served,  and  then  in  Essex  he  wilfully  permits 
the  prisoner  to  escape.  Held :  In  such  case  a  criminal  prose- 
cution against  the  sheriff  cannot  be  maintained  in  the  Circuit 
Superior  Court  of  Richmond  for  this  official  malfeasance  com- 
mitted in  Essex. 

Section  3755. 

In  Cleek's  Case,  21  Grat.,  777,  decided  June,  1871.  Upon  an 
indictment  in  the  county  court  against  C.  the  jury  render  a  ver- 
dict of  guilty,  and  that  he  be  imprisoned  in  the  county  jail  for 
ten  months  and  pay  a  fine  of  ten  dollars.  No  judgment  on  the 
verdict  is  entered  at  that  time,  nor  is  the  case  continued,  but  at 
the  next  term  of  the  court  the  judgment  is  rendered.  Before 
the  ten  months  have  expired  C.  escapes  from  the  jail  and  is  after- 
wards retaken.  Held:  The  case  was  pending  in  a  court,  and  it 
was  proper  to  render  the  judgment  on  the  verdict  at  the  next 
term  of  the  court. 

C.  is  not  entitled  to  be  discharged  at  the  end  of  the  ten 
months,  but  is  to  be  kept  in  prison  beyond  that  period  for  the 


Citations  to  the  Code  of  Virginia.  1003 

length  of  time  he  was  out  when  he  escaped,  and  this  though  C. 
had  been  indicted  for  his  escape. 

Section  3767. 

In  Feely's  Case,  2  Va.  Cases,  1,  decided  by  the  General  Court, 

June,  1815,  it  was  held :  Using  means  to  prevent  and  preventing 

a  witness  from  attending  court,  who  has  been  duly  summoned, 

is  a  contempt  of  court  which  may  be  punished  by  information. 

Section  3768. 

In  Morris  vs.  Creel  et  als.,  1  Va.  Cases,  333,  decided  by  the 
General  Court,  it  was  held :  After  a  subpcena  duces  tecum  has 
been  disobeyed,  an  attachment  should  not  issue  without  first 
serving  a  rule  to  show  cause  why  it  should  not  issue. 

In  Stuart's  Case,  2  Va.  Cases,  320,  decided  November,  1822, 
by  the  General  Court,  it  was  held :  The  making  of  an  affray  and 
riot,  accompanied  by  great  noise  and  turbulence  at  the  tavern 
(near  the  court-house)  where  the  judge  of  the  court  was,  and  of 
which  the  rioters  were  advised,  during  the  night  of  a  term  (but 
the  court  being  then  in  recess),  is  not  a  contempt  of  court. 

In  Dandridge's  Case,  2  Va,  Cases,  408,  decided  by  the  Gen- 
eral Court,  June,  1824,  it  was  held,  p.  426 :  D.,  being  interested 
in  the  event  of  a  suit  pending  in  court,  met  the  judge  of  the 
court  on  the  steps  of  the  court-house  as  he  was  proceeding  to 
take  his  seat  on  the  bench  (the  hour  having  arrived  to  which 
court  had  been  adjourned),  being  saluted  by  the  judge  with 
"Good  morning,  Mr.  D.,"  he  returned  it  by  saying,  "I  do  not 
speak  to  any  one  who  acted  so  corruptly  and  in  so  cowardly  a 
manner  as  to  attack  my  character  when  I  was  absent,  and  so 
entirely  defenceless,"  or  words  to  that  effect,  alluding  to  the  said 
judge's  opinion  expressed  at  the  trial  of  the  said  cause  at  a 
former  term.  This  is  a  contempt  for  which  the  said  D.  may  be 
fined  or  imprisoned  or  both,  although  the  court  was  not  then 
actually  in  session. 

An  attachment  for  contempt  has  no  other  object  than  to  bring 
the  party  into  court ;  when  the  contempt  is  in  open  court,  the 
party  being  present,  there  is  no  need  of  process  to  bring  him  in, 
nor  any  need  of  interrogatories  to  ascertain  what  has  occurred  in 
open  court. 

When  the  contempt  is  not  in  open  court,  the  usual  course  is  to 
issue  a  rule  to  show  cause  why  an  attachment  should  not  issue, 
though  the  attachment  sometimes  issues  without  the  rule.  If 
the  party  appear  to  the  rule  to  show  cause,  and  instead  of  mov- 
ing to  discharge  it,  submit  to  interrogatories,  there  is  no  neces- 
sity for  the  attachment. 

So  if,  before  the  rule  to  sliow  cause  why  an  attachment 
should  not  be  awarded,  the  party  be  present  in  court  and  a  rule 
be  made  upon  him  to  show  cause  "  why  he  should  not  be  fined. 


1004  Citations  to  the  Code  of  Virginia. 

or  committed  for  his  contempt,"  returnable  on  the  morrow,  and 
he  be  recognized  to  appear  on  the  return  of  the  rule,  the  rule  for 
an  attachment,  as  well  as  the  attachment  itself,  may  be  dis- 
pensed with.  On  the  return  of  the  said  rule  last  mentioned,  if 
the  party  be  again  ruled  to  appear  on  the  next  day  to  answer 
interrogatories,  and  he  do  not  appear  to  answer  on  the  next  day, 
and  he  do  not  purge  himself  of  the  contempt,  the  court  may 
proceed  in  the  same  way  as  if  he  had  been  attached,  and  those 
interrogatories  had  been  propounded  to  him,  and  answered  by 
him  while  so  attached. 

When  the  contempt  consists  of  an  insult  to  the  judge,  relat- 
ing to  his  official  conduct,  and  is  expressed  to  his  face,  though 
out  of  court,  a  written  statement  made  by  him,  especially  if 
supported  by  the  affidavits  of  others  who  heard  the  insult,  is  a 
sufficient  ground  for  a  rule. 

In  Deskins's  Case,  4  Leigh,  685,  decided  by  the  General  Court, 
Jaly,  1834.  A  circuit  superior  court  orders  a  subpoena  for  wit- 
nesses to  attend  the  grand  jury  then  in  session,  and  they  inten- 
tionally conceal  themselves  from  the  sheriif  to  prevent  the  pro- 
cess from  being  served,  and  so  prevent  it  from  being  served  till  the 
grand  jury  is  discharged.  Held:  Upon  the  construction  of  the 
statute,  this  is  not  a  contempt  punishable  by  the  court  in  a  sum- 
mary manner. 

In  the  case  of  Baltimore  and  Ohio  Railroad  Company  vs.  City 
of  Wheeling,  13  Grat,,  40,  decided  November  23,  1855,  it  was 
held:  A  proceeding  for  a  contempt  in  disobeying  an  injunc- 
tion is  not  an  order  in  the  cause,  but  is  in  the  nature  of  a  crimi- 
nal proceeding,  and  the  judgment  in  such  a  proceeding  can  only 
be  reviewed  by  a  superior  tribunal  by  writ  of  error,  and  not  al- 
ways in  that  way. 

In  Wells's  Case,  21  Grat.,  500,  decided  November,  1871,  it  was 
held,  p.  504 :  An  appeal  may  be  taken  to  the  court  of  appeals 
from  the  judgment  of  a  circuit  court  imposing  a  fine  upon  a  per- 
son for  a  contempt  of  the  court  in  aiding  to  obstruct  the  execu- 
tion of  the  decree  of  the  court. 

Where  a  rule  is  made  upon  a  person  to  show  cause  why  he 
shall  not  be  punished  for  a  contempt  of  a  court  in  aiding  to  ob- 
struct in  the  execution  of  a  decree  of  the  court,  he  purges  him- 
self of  the  contempt  by  answering  under  oath  that  in  what  he 
had  done  he  acted  as  counsel  in  good  faith,  without  any  design, 
wish,  or  expectation  of  committing  any  contempt  of,  or  offering 
disrespect  to,  the  court. 

The  duty  of  an  attorney  to  his  client  cannot  conflict  with  his 
obligation  to  demean  himself  honestly  in  the  practice  of  the  law, 
or  to  be  faithful  to  his  country.  But  if  he  acts  in  good  faith, 
and  demeans  himself  nonestly,  he  is  not  responsible  for  an  error 
in  judgment. 


Citations  to  the  Code  of  Virginia.  1005 

See  Kendricks's  Case,  78  Va.,  490,  cited  ante,  Section  3692. 

In  Miller's  Case,  80  Va.,  33,  decided  January  8,  1885,  it  was 
held :  Where  a  roll  of  a  volunteer  military  company  is  filed  with 
the  clerk  of  the  court,  the  members  thereof  are  exempt  from  sum- 
mons for  jury  duty,  and  if  summoned,  need  not  attend  to  make 
their  excuses. 

CHAPTEE   CLXXXIV. 

Section  3774. 

In  Mackaboy's  Case,  2  Va.  Cases,  268,  decided  by  the  Gen- 
eral Court,  November,  1821,  it  was  held:  A  record  of  a  riot,  on 
the  view  of  the  justices,  is  a  conviction  of  so  great  authority 
that  it  cannot  be  traversed. 

An  inquisition  ought  to  charge  the  oflfence  with  convenient 
certainty ;  it  ought  to  be  as  special  and  verbatim  as  an  indict- 
ment in  ordinary  cases.  An  inquisition,  therefore,  which  charges 
only  that  the  defendants  were  guilty  of  a  riot,  without  setting 
forth  the  time,  place,  or  manner  of  committing  it,  or  any  facts 
which  in  law  constitute  a  riot,  is  defective  and  insufficient. 

Section  3778. 
In  Ifesniers  Case^  26  Grat.,  976,  decided  October  9,  1875,  it 
was  held:  A  policeman  who  does  not  use  more  force  than  is 
necessary  to  arrest  a  person  who  is  engaged  in  riotous  and  dis- 
orderly conduct,  is  not  guilty  of  an  assault  and  battery. 

Section  3779. 

In  /Samannini's  Case,  16  Grat.,  643,  decided  November  23, 
1863,  it  was  held :  S.  occupies  a  house,  the  front  room  on  the 
first  floor  as  a  store,  the  back  room  as  a  dining-room,  the  upper 
room  as  a  sleeping-apartment  for  her  family ;  but  the  only  mode 
of  ascent  to  the  upper  story  is  outside  of  the  house.  A  riotous 
destruction  of  the  front  door  and  window  of  the  store-room  is 
an  offence  under  the  act. 

A  partial  pulling  down  or  destruction  of  a  dwelling-house  is 
an  offence  under  the  act,  in  this  differing  from  the  English 
statute. 

Section  3780. 

In  Bicks's  Case,  7  Grat.,  597,  decided  June,  1850,  by  the 
General  Court,  it  was  held :  A  jury  may  well  find  a  habitual  or 
general  wearing  of  concealed  weapons  from  evidence  that  the 
defendant  was  seen  once  wearing  concealed  weapons  under  cir- 
cumstances which  satisfied  them  that  it  was  his  general  practice. 

CHAPTEK  CLXXXV. 

Section  3781. 
In  Warner's  Case,  2  Va.  Cases,  95,  decided  by  the  General 
Court,  November,  1817,  it  was  held :  In  a  prosecution  for  bigamy, 


1006  Citations  to  the  Code  of  Virginia. 

where  the  first  marriage  took  place  in  Pennsylvania  and  the 
second  marriage  in  this  State,  it  became  a  question  how  the 
said  first  marriage  might  be  proved.  By  the  law  of  Pennsyl- 
vania marriages  may  be  solemnized  by  taking  each  other  for 
husband  and  wife  before  twelve  witnesses,  and  the  certificate  of 
their  marriage  under  the  hands  of  the  parties  and  witnesses,  at 
least  twelve,  and  one  of  them  a  justice  of  the  peace,  shall  be 
brought  to  the  register  of  the  county  where  they  are  married, 
and  registered  in  his  ofiice.  Decided  that  the  parol  evidence  of 
one  of  the  witnesses  who  was  present  at  the  marriage  (and  who 
proved  that  they  took  each  other  for  husband  and  wife  before 
twelve  witnesses,  one  of  whom  was  a  justice  of  the  peace)  was 
proper,  competent  and  sufiicient  to  prove  that  such  person  was 
a  justice  of  the  peace,  the  commission  of  said  justice  or  a  copy 
thereof  is  not  necessary,  but  the  parol  evidence  of  the  witness 
that  he  knew  the  said  justice,  that  he  was  generally  reputed  as 
such,  that  he  acted  as  justice,  and  that  witness  had  not  heard  to 
the  contrary,  is  proper  and  sufficient. 

The  fact  of  the  marriage  in  such  prosecution  may  likewise  be 
established  by  such  parol  testimony  alone,  without  producing  the 
certificate  of  marriage  or  a  copy  thereof  from  the  register's  office. 

The  acknowledgment  of  the  husband  that  he  is  married,  and 
his  cohabitation  with  the  woman  as  his  wife,  are  proper  evidence 
of  the  first  marriage  in  a  prosecution  for  bigamy. 

There  is  no  case  in  the  6  Rand,  affecting  this  statute. 

In  Moore! s  Case,  9  Leigh,  639,  decided  by  the  General  Court, 
December,  1838.  On  a  trial  for  bigamy,  a  certificate  stating 
that  the  prisoner  was  married  to  J.  F.  by  the  person  whose 
name  is  subscribed  thereto,  and  appearing  to  have  been  returned 
by  him  to  the  county  court,  but  nowise  showing  that  he  was  a 
person  authorized  to  celebrate  marriage,  is  offered  in  evidence 
by  the  prosecutor  "for  the  purpose"  (as  a  bill  of  exceptions 
filed  by  the  prisoner  states)  ."  of  proving,  in  connection  with 
other  evidence,  a  marriage  between  the  prisoner  and  J.  F.,"  and 
though  objected  to  by  the  prisoner,  is  admitted  by  the  court. 
On  this  ground  prisoner  applies  to  the  General  Court  for  a  writ 
of  error,  which  is  refused. 

On  trial  for  bigamy,  evidence  may  be  given  of  prisoner's 
marriage  under  a  license  purporting  to  have  been  issued  by  the 
clerk  of  the  proper  court,  and  of  the  fact  that  such  a  license  was 
issued  to  the  prisoner,  without  producing  the  license  itself, 
though  it  be  within  the  power  of  the  Commonwealth. 

In  Oneale^s  Case,  17  Grat.,  582,  decided  January  23,  1867,  it 
was  held :  A  marriage  contracted  in  Virginia  after  the  secession 
of  the  State  of  Virginia,  and  before  the  re-establishment  of  the 
government  under  the  Alexandria  Constitution,  is  not  therefore 
invalid. 


Citations  to  the  Code  op  Virginia.  1007 

On  a  trial  for  bigamy,  where  the  charge  in  the  indictment  is 
that  the  first  marriage  took  .place  in  another  State  or  country, 
it  must  be  proved  to  the  satisfaction  of  the  jury  that  a  valid 
marriage  had  taken  place  as  stated. 

In  such  a  case  the  admissions  of  the  prisoner  and  his  acts 
are  competent  evidence  to  prove  the  marriage,  without  produc- 
ing the  record,  or  a  witness  present  at  the  marriage. 

In  Bird's  Case,  21  Grat.,  800,  decided  November,  1871,  it  was 
held :  On  a  prosecution  for  bigamy,  where  the  marriage  is  alleged 
to  have  taken  place  in  a  foreign  country  or  State,  proof  must 
be  made  of  a  valid  marriage  according  to  the  law  of  that  coun- 
try or  State;  but  no  particular  kind  of  evidence  is  essential  to 
establish  the  fact,  except  that  it  cannot  be  proved  by  reputation 
-and  cohabitation. 

When  a  witness  testifies  to  a  marriage  in  a  foreign  State,  sol- 
emnized in  the  manner  usual  and  customary  in  such  State  by  a 
person  duly  authorized  to  celebrate  the  rites  of  marriage,  and 
the  parties  afterwards  lived  together  as  man  and  wife,  this  is 
as  satisfactory  evidence  of  a  valid  marriage  as  can  be  expected 
or  desired,  and  in  such  case  it  is  not  necessary  to  prove  the  laws 
-of  such  State  as  to  offer  further  evidence  of  a  compliance  with 
its  provisions. 

M.  proves  that  he  is  a  Catholic  priest  and  a  pastor  of  a  church 
in  Washington,  D.  C,  and  authorized  to  celebrate  the  rites  of 
marriage,  that  by  virtue  of  license  issued  by  the  proper  officer 
in  the  usual  form,  he  married  B.  and  M.  at  his  residence 
in  said  city,  in  the  presence  of  two  persons,  and  in  accord- 
ance with  the  rules  and  customs  of  the  Catholic  church  and 
the  laws  of  the  District  of  Columbia.  It  was  proved  that 
B.  and  M.  afterwards  lived  together  as  husband  and  wife.  On 
a  prosecution  of  B.  for  bigamy,  this  is  sufficient  evidence  of  the 
marriage  of  B.  and  M. 

Section  3783. 

In  Eutchms's  Case,  2  Va.  Cases,  331,  decided  by  the  Gene- 
ral Court,  June,  1823,  it  was  held :  An  indictment  under  this 
statute  charging  that  W.  T.  (the  man)  did  incestuously  inter- 
marry with  N.  H.  (the  woman),  is  sufficiently  certain  to  charge 
her  as  well  as  him,  for  he  could  not  intermarry  with  her  with- 
out her  intermarrying  with  him  also. 

In  Perry  man's  Case,  2  Leigh,  717,  decided  June,  1830.  It  is 
provided  by  statute  "  that  if  the  brother  hath  married  or  shall 
marry  his  brother's  wife,"  the  marriage  shall  be  dissolved,  the 
parties  fined,  etc.  Held  :  The  marrying  a  brother's  widow  is  an 
offence  within  the  statute. 

In  the  case  of  Kelhj  vs.  Scott,  5  Grat.,  479,  decided  January, 
1849,  it  was  held :  In  prosecution,  prior  to  the  act  of  1827,  for 


1008  Citations  to  the  Code  of  Virginia. 

marrying  a  deceased  wife's  sister,  or  for  marrying  the  husband 
of  a  deceased  sister,  the  parties  might  appear  by  attorney,  and^ 
upon  a  plea  of  guilty  by  the  attorney,  judgment  might  be  en- 
tered declaring  the  marriage  a  nullity.  A  judgment  declaring 
the  marriage  a  nullity  is  valid,  though  it  does  not  proceed  to 
punish  the  parties,  or  to  require  them  to  enter  into  bonds  with 
condition  to  Hve  separate. 

Section  3784. 
In  UilVs  Case,  6  Leigh,  636,  decided  by  the  General  Court,. 
June,  1836,  it  was  held:  In  an  indictment  upon  the  statute, 
against  the  clerk  of  a  county  court  for  issuing  a  marriage-li- 
cense for  the  marriage  of  an  infant  never  before  married,  with- 
out the  consent  of  the  infant's  father  or  guardian,  it  is  not  ne- 
cessary to  charge  that  the  clerk  knew  that  the  party  was  an 
infant,  or  that  he  issued  the  license  maliciously  or  corruptly,  or 
that  a  marriage  took  place  in  pursuance  of  the  license. 

Section  3786. 

In  Anderson's  Case^  5  Rand.,  627,  decided  by  the  General 
Court,  November,  1826,  it  was  held :  Although  our  courts  take 
cognizance  of  offences  contra  honos  mores,  yet  the  adjudicated 
cases  afford  a  safe  rule  for  fixing  the  limits  of  the  principle;  if 
they  are  departed  from,  the  criminal  jurisdiction  may  be  ex- 
tended to  cases  which,  though  grossly  immoral,  were  never  yet 
thought  of  as  indictable  offences,  such  as  slander  and  the  like. 

In  Isaacs  and  Wesfs  Case,  5  Rand.,  634,  decided  by  the  Gen- 
eral Court,  November,  1826,  it  was  held :  The  offence  of  forni- 
cation (or  the  cohabiting  together  by  a  man  and  a  woman  in  a 
state  of  illicit  commerce,  as  man  and  wife,  but  without  marri- 
age) is  not  punishable  as  a  common-law  offence.  The  statute 
which  prescribes  a  penalty  for  the  offence  must  be  pursued  in 
such  cases. 

In  Jones's  Case,  2  Grat.,  555,  decided  June,  1845,  it  was  held 
by  the  General  Court :  Adultery  or  fornication  committed  with 
a  slave  is  a  violation  of  the  statute. 

In  Lafferty's  Case,  6  Grat.,  672,  decided  December,  1849,  by 
the  General  Court,  it  was  held :  Illicit  intercourse  between  an 
unmarried  man  and  a  married  woman  is  fornication  in  the  man. 

In  Nichol  and  Jane's  Case,  7  Grat.,  589,  decided  June,  1850, 
by  the  General  Court,  it  was  held :  In  an  indictment  for  lewd 
and  lascivious  cohabitation,  the  offence  is  charged  from  a  day 
prior  to  the  day  when  the  statute  went  into  effect,  but  as  con- 
tinuing to  a  day  after  the  commencement  of  the  act.  The  in- 
dictment is  good. 

In  Cregor's  Case,  7  Grat.,  591,  decided  June,  1850,  by  the 
General  Court,  it  was  held :  One  credible  witness  is  now  suffi- 
cient to  authorize  a  con-\dction  for  adultery  or  fornication. 


Citations  to  the  Code  of  Virginia.  1009 

Section  3787. 

For  the  reference  to  7  Grat.,  589,  see  Nichol  and  Jane's 
Case,  cited  supra,  Section  3786. 

In  Scott's  Case,  77  Va.,  344,  decided  January  25,  1883,  it  was 
held :  An  indictment  for  a  statutory  offence,  charging  the  offence 
in  the  language  of  the  statute,  is  suflScient. 

An  indictment  for  lewd  and  lascivious  cohabitation  may  be 
either  joint  or  separate. 

In  Jones's  Case,  80  Va.,  18,  decided  January  8,  1885,  it  was 
held :  To  sustain  an  indictment  under  this  section  the  evidence 
must  establish  that  the  parties,  not  being  married,  lewdly  and 
lasciviously  associated  and  cohabited,  that  is,  lived  together  in 
the  same  house  as  man  and  wife  live  together. 

In  Pruner  &  Clark's  Case,  82  Va.,  115,  decided  June  24, 
1886,  it  was  held :  To  constitute  this  offence  it  is  essential  that 
it  be  proved  that  the  parties  cohabit  together,  that  is,  live  to- 
gether in  the  same  house  as  man  and  wife.  Proof  of  occasional 
acts  of  incontinence  merely  is  not  sufficient. 

Section  3788. 

In  McPhersons  Case,  28  Grat.,  939,  decided  May  1,  1877,  it 
was  held :  A  marriage  between  a  white  man  and  a  woman  who 
is  of  less  than  one-fourth  of  negro  blood,  however  small  this 
lesser  quantity  may  be,  is  legal. 

A  woman  whose  father  was  white,  and  whose  mother's  father 
was  white,  and  whose  great-grandmother  was  of  brown  com- 
plexion, is  not  a  negro  in  the  sense  of  the  statute. 

In  Kinney's  Case,  30  Grat.,  858,  decided  September,  1878. 
K.,  a  negro  man,  and  M.,  a  white  woman,  both  domiciled  in  the 
county  of  Augusta,  Virginia,  left  Virginia  and  went  to  Washing- 
ton, D.  C,  and  were  married  there  according  to  the  regular 
forms  for  celebrating  marriages,  and  after  remaining  absent  from 
Virginia  about  ten  days,  returned  to  their  home  in  Augusta 
county,  Virginia,  where  they  have  since  lived  as  man  and  wife. 
By  the  laws  of  Virginia,  all  marriages  between  a  white  person 
and  a  negro  are  absolutely  void.  On  an  indictment  for  lewdly 
and  lasciviously  associating  and  cohabiting  together,  held  :  Al- 
though such  marriages  are  not  prohibited  by  the  laws  of  the 
District  of  Columbia,  and  this  marriage  was  performed  accord- 
ing to  the  ceremonies  there  prescribed,  it  is  void  under  the 
laws  of  Virginia,  and  the  parties  are  liable  to  indictment. 

While  the  forms  and  ceremonies  of  marriage  are  governed  by 
the  laws  of  the  place  where  the  marriage  is  celebrated,  the  essen- 
tials of  the  contract  depend  upon  and  are  governed  by  the  laws 
of  the  country  where  the  parties  are  domiciled  at  the  time  of  the 
marriage,  and  in  which  the  matrimonial  residence  is  contemplated. 

See  Scott's  Case,  11  Va.,  344,  cited  ante,  Section  3787. 
64 


1010  Citations  to  the  Code  op  Virginia. 

In  the  case  of  Jones  vs.  Commonwealth,  79  Va.,  213,  decided 
July  24,  1884,  it  was  held:  An  indictment  in  the  language  of 
the  statute  interdicting  marriage  between  a  negro  and  a  white 
person  is  sufficient.  To  sustain  a  charge  under  said  section  the 
Commonwealth  must  prove  an  actual  marriage,  duly  celebrated 
between  the  parties  by  a  person  duly  authorized  and  qualified 
to  celebrate  it ;  or  that  the  parties  consummated  the  man'iage  in 
the  l)07ia  fide  belief  that  the  person  celebrating  it  was  legally  au- 
thorized and  qualified  to  celebrate  it  according  to  the  law  of 
Virginia,  and  also  the  color  and  indentity  of  the  parties ;  and 
this  must  be  fully  proved  by  the  best  evidence  attainable. 

In  Jone^s  Case,  80  Va.,  538,  decided  June  18,  1885,  it  was 
held  :  In  order  to  sustain  an  indictment  under  this  section  making 
the  inter-marriage  of  a  negro  with  a  white  person  a  felony,  it  is 
necessary  first  to  establish  that  the  accused  is  a  person  with 
one-fourth  or  more  of  negro  blood,  id  est,  a  negro ;  and  the  burden 
of  proving  this  lies  on  the  Commonwealth. 

Section  3799. 

In  the  case  of  Ex-Parte  Marx.,  86  Va.  40,  decided  April  18, 
1889,  it  was  held :  The  fine  prescribed  for  violating  the  Sabbath 
is  recoverable  before  a  justice  and  by  a  civil  warrant.  The  con- 
stitutional right  to  trial  by  jury  does  not  extend  to  such  an 
offence. 

Section  3801. 

In  N.  db  W.  R.  E.  Co.'s  Case,  88  Va.,  95,  decided  June  25, 
1892,  it  was  held :  Statutes  forbidding  inter-State  freight  trains 
to  run  on  Sunday  are  by  their  necessary  operation,  whatever 
their  professed  object,  a  regulation  of  or  an  obstruction  to  inter- 
State  commerce. 

This  section  as  to  Sunday  trains  is  inconsistent  with  United 
States  Constitution,  Act  1,  Section  18,  giving  Congress  power  to 
regulate  inter-State  commerce,  and  void  as  to  trains  rimning 
between  different  States. 

Section  3804. 

In  Arrington's  Case,  87  Va.,  96,  decided  November  20,  1890, 
it  was  held  :  Prosecution  for  selling  liquor  on  Sunday  contrary 
to  this  section  is  no  bar  to  prosecution  for  selling  same  liquor 
without  license  contrary  to  act. 

Section  3805. 

In  DanieVs  Case,  2  Va.  Cases,"  402,  decided  by  the  General 
Court,  June,  1824,  it  was  held :  An  indictment  for  disturbing  a 
religious  congregation  need  not  set  out  the  means  by  which  the 
disturbance  was  effected. 

In  Jennings  Case,  3  Grat.  624,  it  was  held,  by  the  General 
Court :  The  statute  is  applicable  not  only  to  disturbances  which 


Citations  to  the  Code  of  Virginia.  1011 

are  made  while  the  religious  services  are  progressing,  but  to 
disturbances  made  whilst  the  congregation  is  assembled  for  reli- 
gious worship,  though  it  be  at  night  after  the  religious  services 
are  closed  for  the  day  and  the  congregation  has  retired  to  rest. 

CHAPTER  CLXXXVI. 
CHAPTER  CLXXXVIL 

Sectign  3815. 

In  Wyait's  Case,  6  Rand.,  694,  decided  by  the  General  Court, 
November,  1828,  it  was  held:  The  distinctive  feature  in  the 
character  of  the  games  called  A.  B.  C.  and  E.  O.  and  faro-bank 
is,  that  the  chances  of  the  game  are  unequal,  all  other  things 
being  equal,  and  those  unequal  chances  are  in  favor  of  the  exhibi- 
tor of  the  games  or  tables.  If  other  games  resemble  those 
standard  games  in  that  distinctive  feature,  they  come  within  the 
terms  of  this  section,  being  "gaming  tables  of  the  same  or  Hke 
kind,"  and  are  liable  to  the  penalties  denounced  against  those 
standard  games,  whatever  may  be  the  denomination  of  those 
other  games,  and  whether  played  with  cards,  dice,  or  in  any 
other  manner.  Under  this  construction,  the  exhibitor  of  a  gam- 
ing table  called  haphazard,  alias  blind  hazard,  alias  snickup, 
etc.  Held :  To  be  liable  to  the  same  punishment  with  the  ex- 
hibitor of  a  faro-bank. 

In  Huff's  Case,  14  Grat.,  648,  decided  March  8,  1858,  it  was 
held :  An  indictment  for  gaming  under  the  statute  must  charge 
the  playing  of  one  of  the  games  specified,  or  it  must  show  by 
averment  that  the  gaming  charged  is  of  the  like  kind  as  those 
specified,  that  is,  that  the  chances  of  the  game  are  unequal,  all 
other  things  being  equal. 

A  presentment  for  gaming,  not  setting  out  any  ofltence  against 
th«  statute,  may  be  quashed  on  motion. 

In  Leatlis  Case,  32  Grat.,  873,  decided  January,  1873,  it  was 
held :  An  indictment  under  the  statute  for  gaming  pursues  the 
language  of  the  statute,  except  that  it  uses  the  word  "  and "  in 
all  the  place  of  "or,"  thus  charging  the  accused  with  exhibiting 
the  games  mentioned  in  the  statute.  This  is  correct.  It  charges 
but  one  offence,  and  is  supported  by  proof  of  the  keeping  or  ex- 
hibiting of  any  one  of  the  games  or  tables  mentioned,  and  on 
conviction  there  would  be  but  one  fine  and  one  term  of  impri- 
sonment. 

The  indictment  charges  the  offence  to  have  been  committed 
in  the  city  of  Richmond,  and  within  the  jurisdiction  of  the  court. 
This  allegation  is  sufficiently  certain.  It  is  not  an  offe  nee  in  which 
place  enters  into  the  offence,  but  it  is  an  offence  without  re- 
gard to  the  particular  house,  building,  or  other  particular  locality 


1012  Citations  to  the  Code  op  Virginia. 

wliere  it  is  committed.  It  is  not  necessary  that  the  indictment 
should  charge  that  the  games  or  tables  were  kept  or  exhibited 
for  gain.  It  is  sufficient  that  it  follows  the  language  of  tho 
statute,  and  further  charges  that  the  accused  did  unlawfully 
keep  and  exhibit,  etc.  Upon  the  facts  as  certified  in  this  case, 
the  accused  was  properly  convicted,  and  the  judgment  was  re- 
versed by  the  appellate  court. 

In  NucJcolVs  Case,  32  Grat.,  884,  decided  March,  1879,  it  was 
held :  The  game  of  poker  or  draw  poker,  is  not  a  game  of  the 
like  kind  with  faro,  keno,  etc.,  and  does  not  come  within  the  stat- 
ute. A  person  who  does  not  take  part  in  the  game,  but  fur- 
nishes the  room  and  gas  in  which  poker  or  draw  poker  is 
played,  for  which  he  receives  a  moderate  compensation  from  the 
parties  playing,  is  not  guilty  under  the  statute  of  being  concerned 
in  interest  in  the  keeping  a  table  of  the  like  kind  with  faro^ 
keno,  etc. 

Section  3816. 

In  Maddox's  Case,  2  Va.  Cases,  19,  decided  by  the  General 
Court,  November,  1815,  it  was  held:  A  tavern-keeper,  who  is 
presented  for  suffering  faro  and  loo  to  be  played  at  his  house, 
may  be  tried  on  the  presentment  alone,  without  any  information, 
and  if  he  refuses  to  answer  to  the  presentment,  judgment  by 
default  may  be  rendered  against  him. 

Section  3818. 

In  Buttis  Case,  2  Ya.  Cases,  18,  decided  by  the  General  Court, 
November,  1815,  it  was  held :  On  a  presentment  for  gaming  the 
defendant  was  charged  with  the  offence  committed  at  the  booth 
of  Price  Skinner,  the  proof  was  of  gaming  at  the  booth  of  Clarke, 
the  said  Skinner  having  no  right,  interest,  or  agency  in  the 
booth,  this  proof  is  insufficient  to  support  the  charge. 

In  Terry's  Case,  2  Va.  Cases,  77,  decided  by  the  General 
Court,  June,  1817,  it  was  held:  Playing  at  cards  in  a  tavern  is 
unlawful  gaming,  whether  the  party  bets  or  not. 

In  ^Valker's  Case,  2  Va.  Cases,  515,  decided  by  the  General 
Court,  June,  1826,  it  was  held:  An  abandoned  jail,  used  for  the 
guard  and  open  to  all  the  citizens  of  the  county,  is  a  public 
place. 

In  Windsor's  Case,  4  Leigh,  680,  decided  by  the  General 
Court,  December,  1833.  Indictment  for  gaming  charges  de- 
fendant with  unlawful  playing  vdih.  cards,  to- wit,  at  the  game  of 
all-fours,  of  loo,  and  of  whist  at  a  public  place,  to-wit,  at  the 
store-house  of  G.,  H.  &,  Co.     Held: 

1.  That  to  convict  the  defendant  it  is  incumbent  on  the  prose- 
cutor to  prove  that  he  played  at  some  one  of  the  games  specified 
in  the  indictment. 

2.  That,  if  the  playing  was  at  the  store-house  of  G.,  H.  &  Co., 


Citations  to  the  Code  of  Vikginia.  1013 

in  the  night-time,  after  the  business  of  the  day  was  at  an  end, 
and  the  doors  closed,  the  store-house  in  that  state  of  things, 
prima  facie,  was  not  a  public  place,  though  it  was  so  when  it 
was  open  to  the  public  in  the  day-time. 

In  Sanders's  Case,  5  Leigh,  751,  decided  by  the  General 
Court,  July,  1835,  it  was  held:  The  lessee  and  occupier  of  a 
tavern  is  also  the  occupier  under  the  same  lease  of  a  store- 
house, which,  however,  is  not  within  the  curtilage  of  the  tavern, 
nor  used  in  any  way  with  the  tavern.  Held :  The  store-house  is 
not  a  part  or  an  appurtenance  of  the  tavern,  within  the  meaniDg 
of  the  statute  against  unlawful  gaming. 

To  make  a  separate  house  an  appurtenance  of  a  tavern,  within 
the  meaning  of  that  provision,  such  house  must  be  used  in  con- 
nection with  the  tavern  for  the  accommodation  of  guests  as  a 
part  of  the  tavern. 

In  Farmer's  Case,  8  Leigh,  741,  decided  by  the  General  Court, 
December,  1837.  On  a  day  when  many  persons  are  assembled 
at  a  tavern  for  the  purpose  of  mustering  a  party  engage  in  gaming 
in  a  barn  two  hundred  yards  distant  from  the  tavern  hoase  and 
in  a  separate  enclosure,  though  on  the  same  plantation,  the 
barn  being  seventy  or  eighty  yards  in  the  rear  of  another  bam- 
in  which  spirits  are  sold  by  the  tavern-keeper.  Held :  The  first- 
mentioned  barn  is  a  public  place,  within  the  meaning  of  the  act 
to  prevent  unlawful  gaming. 

In  Prices  Case,  8  Leigh,  757,  it  was  held,  by  the  General 
Court:  In  an  indictment  against  a  tavern-keeper  for  sufiering 
the  game  of  loo  to  be  played  in  his  tavern  by  certain  persons 
named,  will  be  supported  by  proof  of  his  having  suffered  that 
game  to  be  played  therein,  though  by  other  persons  than  those 
named  in  the  indictment. 

If  a  party  indicted  for  suffering  an  unlawful  game  to  be  played 
in  his  tavern  was  keeper  of  the  tavern  at  the  time  of  the  playing, 
his  having  a  license  at  the  time  is  not  necessary  to  his  conviction. 
On  conviction  of  a  tavern-keeper  upon  an  indictment  for  per- 
mitting unlawful  gaming  in  his  tavern,  judgment  cannot  be  ren- 
dered for  revocation  of  defendant's  license,  acquired  since  the 
commission  of  the  offence. 

In  Sinkous'  Case,  9  Leigh,  608,  decided  by  the  General  Court, 
Jiuie,  1838,  it  was  held  :  An  indictment  charging  the  defandant 
with  unlawful  gaming  "at  the  house  of  J.  W.,  the  same  being  a 
house  of  entertainment,"  is  sufficient. 

Wilson's  Case,  9  Leigh,  648,  decided  by  the  General  Court, 
June,  1839,  was  a  mixed  question  of  law  and  fact,  and  decided 
only  that  certain  described  premises  was  a  race-field.  No  ap- 
plication as  authority. 

In  Ido7jerts  Case,  10  Leigh,  686  (2d  edition,  720),  decided  by 
the  General  Court,  December,  1840,  it  was  held :  A  presentment 


1014  Citations  to  the  Code  op  Virginia. 

"  for  unlawfully  playing  cards  at  the  grocery  of  D.  and  C"  is 
defective  in  substance,  for  not  alleging  the  grocery  to  be  a  public 
place,  or  a  place  of  public  resort. 

In  Yandine's  Case,  6  Grat.,  689,  decided  at  December  term, 
1849,  by  the  General  Court.  A  cleared  space  in  woods  held  not 
to  be  a  public  place  within  the  meaning  of  the  act. 

In  Jfeazle's  Case,  8  Grat.,  585,  decided  December,  1851,  by  the 
General  Court,  it  was  held :  A  store-house  in  a  village,  late  at 
night  after  persons  cease  to  come  to  the  store  to  purchase  goods, 
and  the  door  is  locked,  is  not  a  public  place,  within  the  meaning 
of  the  statute  against  gaming. 

In  Shelton's  Case,  8  Grat.,  592,  decided  December,  1851,  by 
the  General  Court,  it  was  held :  Betting  on  a  horse  race  is  not 
within  the  meaning  of  the  section. 

In  Bishop's  Case,  13  Grat.,  785,  decided  February  11,  1856, 
it  was  held :  A  presentment  for  playing  at  cards  must  charge 
that  the  place  at  which  it  occurred  was  a  public  place  at  the 
time  of  such  playing,  the  name  of  the  place  not  of  itself  import- 
ing that  it  was  at  all  times  a  public  place. 

A  presentment  for  playing  at  cards  "at  or  near"  a  public 
place  is  objectionable  for  uncertainty. 

In  Gibhoney's  Case,  14  Grat.,  582,  decided  September  8,  1857, 
it  was  held :  An  indictment  for  playing  at  cards  at  a  public  place 
may  be  sustained  by  proof  that  the  party  bet  at  faro  at  the  time 
and  place  stated  in  the  indictment. 

In  PurcelVs  Case,  14  Grat.,  679,  decided  May  18, 1858,  it  was 
held :  A  room  in  an  outhouse  within  the  enclosures  of  a  tavern 
lot,  which  had  at  one  time  been  used  in  connection  with  the 
tavern,  and  the  room  over  which  is  still  so  used,  having  been 
rented  by  a  third  party,  and  held,  used,  and  controlled  by  him, 
independent  of  the  proprietor  of  the  tavern,  though  the  occupier 
boarded  at  the  hotel,  and  the  servants  belonging  to  it  attended 
to  the  room,  it  is  not  a  public  ordinary,  nor  is  it  a  public  place 
in  the  sense  of  the  act. 

In  NeaVs  Case,  22  Grat.,  917,  decided  December  4,  1872,  it 
was  held :  A  licensed  eating-house  in  a  town  is  a  public  place 
in  the  meaning  of  the  statute. 

Betting  on  the  g«me  of  "bagatelle"  at  a  public  place  is  a 
violation  of  the  statute,  and  is  equally  so  if  the  person  plays  as 
well  as  bets.    It  is  unlawful  to  bet  at  any  game  at  a  public  place. 

Section  3820. 
See   Maddox's    Case,  2  Va.    Cases,   19,  cited   ante,   Section 
3816. 

See  Saunders's  Case,  5  Leigh,  751,  cited  ante.  Section  3818. 
See  Price's  Case,  8  Leigh,  757,  cited  ante,  Section  3818. 
See  PurcelVs  Case,  14  Grat.,  679,  cited  ante,  Section  3818. 


Citations  to  the  Code  op  Virginia.  1015 

Section  3824. 
See  15  Grat.,  653,  cited  post,  Section  3837. 

Section  3826. 

In  Chubh's  Case,  5  Band.,  715,  decided  by  the  General  Court,. 
November,  1827,  it  was  held :  The  act  entitled  "  an  act  to  pre- 
vent the  sale  of  foreign  lottery  tickets  within  this  Common- 
wealth "  does  not  come  within  the  operation  of  the  twenty- 
ninth  section  of  the  gaming  law,  and  is,  therefore,  not  to  be  in- 
terpreted as  if  it  were  a  remedial  law,  but  like  other  penal  laws. 

A  guarantee  (or  written  assurance  or  promise,  whereby  the 
warranter  binds  himself  that  he  will  pay  the  prize  which  may 
be  drawn  to  a  certain  number  in  a  lottery)  when  sold  by  the 
proprietor  of  the  lottery,  or  a  duly  authorized  agent  of  the  pro- 
prietor, is  strictly  a  lottery  ticket,  although  it  is  not  written  in 
the  usual  form  of  lottery  tickets,  and  the  sale  of  such  guarantee 
by  such  proprietor,  or  his  agent,  is  forbidden  by  the  said  act. 
If  an  individual  opens  an  office  and  sells  guarantees  as  a  sub- 
stitute for  lottery  tickets,  he,  the  vendor,  holding  the  tickets 
themselves  for  the  benefit  of  the  purchaser,  sells  those  things 
which  are  substantially  lottery  tickets,  and  such  sale  is  forbid- 
den by  this  act. 

See  Temple's  Case,  75  Va.,  892,  cited  ante,  Section  3692. 

Section  3837. 

In  Shumate's  Case,  15  Grat.,  653,  decided  January,  1860.  The 
section  in  relation  to  betting  on  elections  is  to  be  construed  as  a 
remedial  statute.  This  section  of  the  Code  applies  to  all  the 
preceding  sections  of  the  chapter. 

A  short  time  before  the  election  of  county  officers  for  A.  to  be 
made  in  May,  1858,  M.  sold  to  S.  a  wagon  at  the  price  of 
one  hundred  and  fifty  dollars,  and  worth  that  sum,  to  be  paid 
by  S.  when  K.,  one  of  the  candidates  for  office  of  county  court 
clerk  at  said  election,  should  be  elected  to  that  office,  and  not  at 
all  if  he  was  not  elected,  and  S.  at  the  time  of  said  sale  put  up 
his  check  agreeably  to  that  understanding,  and  upon  these  terms 
took  possession  of  the  wagon.  Held :  This  is  a  wager  on  the 
part  of  M.  and  S.  within  the  meaning  of  the  Code.  Both  M.  and 
S.  are  liable  to  a  fine  not  exceeding  the  amount  that  either  might 
lose. 

CHAPTEE  CLXXXVIIL 

Section  3853. 
See  NewelVs  Case,  2  Wash.,  88,  cited  ante.  Section  3744, 


1016  Citations  to  the  Code  of  Virginia. 

CHAPTER  CLXXXIX. 

Section  3856. 
In  Bailey's  Case,  78  Va.,  19,  decided  November  19,  1883,  it 
"was  held:  Under  this  section  a  road  which  has  merely  been 
ordered  to  be  opened,  but  has  never  been  actually  opened,  is  not 
a  road  such  as  that  section  prescribes  a  penalty  for  obstructing. 
Besisting  the  execution  of  the  court's  order  to  open  such  "road" 
is  not  an  offence  under  that  section,  but  a  contempt  of  the  court. 

CHAPTER  CXC. 

Section  3879. 

In  Barker's  Case,  2  Va.  Cases,  122,  decided  by  the  General 
Court,  November,  1817,  it  was  held:  Every  offence  to  which  a 
capital  punishment  is  annexed  by  statute  is  a  felony,  and  since 
the  establishment  of  the  penitentiary,  every  offence  there  pun- 
ishable is  in  like  manner  a  felony,  unless  it  be  by  statute  denom- 
inated a  misdemeanor. 

In  Rider's  Case,  16  Grat.,  499,  decided  August  30,  1860,  it 
was  held :  An  indictment  for  petit  larceny,  which  proceeds  to 
charge  that  the  person  indicted  had  been  previously  indicted, 
tried,  and  sentenced  for  another  petty  larceny,  is  an  indictment 
for  a  felony ;  and  a  county  or  a  corporation  court  has  no  juris- 
diction to  try  the  prisoner.  If,  upon  such  an  indictment,  the 
the  prisoner  is  tried  and  found  guilty,  the  verdict  should  be 
arrested,  and  all  the  proceeding  subsequent  to  the  indictment 
should  be  quashed. 

In  RandalVs  Case,  24  Grat.,  644,  decided  January,  1874,  it 
was  held :  All  offences  for  which  the  penalty  is  confinement  in  the 
penitentiary  are  felonies,  and  the  indictment  for  such  offence 
must  describe  it  as  having  been  done  "feloniously." 

In  Benton's  Case,  89  Va.,  570,  decided  January  26,  1893,  it 
was  held :  A  felony  is  such  an  offence  as  may  be  (not  must  be) 
punished  by  death  or  confinement  in  the  penitentiary. 

Section  3885. 

In  Williamson's  Case,  2  Va.  Cases,  211,  decided  June,  1820, 
by  the  General  Court,  it  was  held :  An  accessory  may  be  tried 
after  conviction,  and  before  attainder  of  the  principal  under  this 
statute.  It  is  not  necessary  that  the  indictment  against  the  ac- 
cessory should  aver  the  conviction  of  the  principal,  for  they  may 
be  jointly  indicted. 

A  verdict  which  finds  a  person  indicted  as  being  accessory  to 
murder  to  be  guilty  thereof,  but  does  not  determine  whether  he 
is  guilty  as  accessory  to  the  murder  in  the  first  or  second  de- 
gree, is  erroneous,  and  ought  to  be  set  aside  and  a  venire  facias 
de  novo  granted. 


Citations  to  the  Code  of  Virginia.  1017 

In  Thornton's  Case,  24  Grat.,  657,  decided  January,  1874,  it 
was  held :  An  indictment  for  murder  against  T.  and  R.  contains 
two  counts :  the  second  charges  T.  as  principal  and  R.  as  acces- 
sory, before  the  fact;  and,  on  the  motion  of  T.,  the  second  count 
is  struck  out.  At  a  subsequent  term,  on  the  trial  of  T.,  the 
clerk  reads  both  counts,  and  charges  the  jury  on  both ;  and  then 
the  prisoner  excepts.  The  court  then  directs  the  clerk  to  read 
the  first  count,  which  is  done,  and  the  clerk  charges  the  jury 
upon  it;  and  then  the  prisoner  excepts  to  the  second  reading 
and  charge.  The  second  reading  and  charge  was  proper,  and 
cures  the  error  of  the  first. 

In  Wrens  Case,  25  Grat.,  989,  decided  January  22,  1875. 
W.,  a  police  officer,  was  indicted  and  tried  as  accessory  after 
the  fact  to  a  felony  committed  by  D.  The  jury  put  to  the  court 
4;he  question,  "Are  we  considering  the  question  against  W.,  or 
W.,  a  detective  officer?  If  a  detective  official,  does  the  fact 
that  he  allowed  D.,  after  knowing  D.'s  offence,  to  go  away  un- 
arrested, make  him  accessory  after  the  fact  ?  "  Held :  The  court 
should  have  responded  directly  to  the  question  in  the  negative. 

In  Wren's  Case,  26  Grat.,  952,  decided  April  22,  1875,  it  was 
held :  An  accessory  after  the  fact  to  a  felony  is  a  person  who, 
knowing  a  felony  to  have  been  committed  by  another,  receives, 
relieves,  comforts,  or  assists  the  felon.  To  constitute  an  acces- 
sory after  the  fact,  three  things  are  requisite : 

1.  The  felony  must  be  completed. 

2.  He  must  know  that  the  felon  is  gmlty. 

3.  He  must  receive,  relieve,  comfort,  or  assist  him. 

It  is  necessary  that  the  accessory  have  notice,  express  or  im- 
plied, at  the  time  he  assists  or  comforts  the  felon,  that  he  has 
committed  a  felony;  and  the  mere  fact  that  one  receives  a  felon 
in  the  same  county  in  which  he  has  been  attainted,  is  not  suffi- 
cient to  raise  the  presumption  of  knowledge ;  and  the  question 
of  knowledge  is  a  question  for  the  jury. 

Any  assistance  given  to  one  known  to  be  a  felon,  in  order  to 
hinder  his  apprehension,  trial,  or  punishment,  is  sufficient  to 
make  a  man  accessory  after  the  fact :  as  that  he  concealed  him 
in  the  house,  or  shut  the  doors  against  his  pursuers  until  he 
should  have  an  opportunity  to  escape,  or  took  money  from  him 
to  allow  him  to  escape,  or  supplied  him  with  money,  a  horse, 
or  other  necessaries,  in  order  to  enable  him  to  escape ;  or  that 
the  principal  was  in  prison,  and  the  jailer  was  bribed  to  let  him 
escape,  or  conveyed  to  him  instruments  to  enable  him  to  break 
prison  and  escape. 

Merely  suffering  the  principal  to  escape  will  not  make  the 
party  an  accessory  after  the  fact,  for  it  amounts,  at  most,  to  a 
mere  omission ;  or  if  he  agree  for  money  not  to  prosecute  the 
felon,  or  if,  knowing  of  a  felony,  he  fails  to  make  it  known  to 


1018  Citations  to  the  Code  of  Vibginta. 

the  proper  authorities,  none  of  these  acts  are  sufficient  to  make 
the  party  an  accessory  after  the  fact.  If  the  thing  done  amounts 
to  no  more  than  compounding  a  felony,  or  the  misprision  of  it, 
the  doer  of  it  will  not  be  an  accessory. 

The  true  test  whether  one  is  an  accessory  after  the  fact  is,  to 
consider  whether  what  he  did  was  done  by  way  of  personal  help 
to  his  principal,  with  the  view  of  enabling  his  principal  to  elude 
punishment,  the  kinds  of  help  rendered  appearing  unimportant. 

See  MaybusJis  Case,  29  Grat.,  857,  cited  ante,  under  Section 
3741. 

In  MitchelVs  Case,  33  Grat.,  868.     The  statute  was  followed. 

In  Hawley's  Case,  75  Va.,  847,  decided  November,  1880.  An 
indictment  for  felony  is  against  four  persons,  M.,  P.,  C,  and  G. 
The  first  three  counts  are  for  the  murder  of  H.  The  fourth 
count  is  against  M.,  one  of  them,  for  murder,  and  against  the 
other  three  for  knowingly  and  wilfully  aiding,  abetting,  and 
counselling  the  said  M.  to  commit  the  felony  aforesaid.  And 
the  count  in  the  conclusion  charges  that  the  said  M.,  P.,  C,  and 
G.,  him,  the  said  H.,  in  manner  and  form  aforesaid,  feloniously, 
wilfully,  and  of  their  malice  aforethought,  did  kill  and  murder, 
etc.  Held :  The  same  count  may  contain  a  charge  of  murder 
against  one,  and  a  charge  of  being  an  accessory  against  others. 
If  the  conclusion  of  the  count  charging  them  as  guilty  of  mur- 
der is  not  correct,  it  is  not  essential  to  the  indictment,  and  may 
be  struck  out  as  surplusage. 

In  Hatcheits  Case,  75  Va.,  925,  decided  January,  1882,  it  was 
held :  An  accessory  to  a  felony  cannot  be  prosecuted  for  a  sub- 
stantive offence,  but  only  as  an  accessory  to  the  crime  perpe- 
trated by  the  principal  felon.  And  in  order  to  this  conviction, 
although  it  is  not  necessary  to  show  that  the  principal  felon  has 
been  convicted,  it  is  necessary  to  show  that  the  substantive  of- 
fence, to  which  he  is  charged  as  having  been  accessory,  has  been 
committed  bv  the  principal  felon. 

In  Oliver's  Case,  77  Va.,  590,  decided  July  19,  1883,  it  was 
held :  Though  conspiracy  has  been  proved,  statements  of  a  con- 
spirator, made  after  the  object  of  the  conspiracy  is  accomplished, 
are  inadmissible  to  criminate  his  co-conspirator. 

In  Kemp's  Case,  80  Va.,  443,  decided  April  16,  1885,  it  was 
held :  It  is  well-settled  law  that  mere  presence  is  not  sufficient 
to  render  one  guilty  of  aiding  and  abetting  the  commission  of 
crime.  There  must  be  something  done  or  said  by  him  to  show 
his  consent  to  the  felonious  purpose,  and  contributing  to  its  exe- 
cution. 

Section  3886. 

In  UhVs  Case,  6  Grat.,  706,  decided  December,  1849,  by  the 
General  Court,  it  was  held :  Where  a  wife  acts  in  the  further- 
ance of  a  combination  to  commit  a  felony,  in  the  presence  of  her 


Citations  to  the  Code  of  Vibginia.  1019 

husband,  she  will  be  presumed  to  have  acted  under  his  coercion. 
But  if  the  circumstances  show  that  she  was  not  acting  under 
such  coercion,  but  of  her  own  free  will,  then  she  is  accountable 
for  her  acts. 

Section  3887. 
In  Kemp's  Case,  18  Grat.,  969,  decided  January,  1868,  it  was 
held :  Several  prisoners  having  been  tried  together  for  the  same 
felony,  and  found  guilty,  the  court  may  grant  a  new  trial  to  one 
of  them  and  render  a  judgment  against  the  others. 

Section  3888. 

In  Clark's  Case,  6  Grat.,  675,  decided  December,  1849,  by  the 
General  Court,  it  was  held :  An  indictment  for  an  attempt  to 
commit  an  offence  ought  to  allege  some  act  done  by  the  defend- 
ant, of  such  a  nature  as  to  constitute  an  attempt  to  commit  the 
offence  mentioned  in  the  indictment. 

In  VhVs  Case,  6  Grat.,  706,  decided  December,  1849,  by  the 
General  Court :  On  an  indictment  against  several  for  an  attempt 
to  burn  a  barn.  Held :  That  an  attempt,  according  to  the  true 
intent  and  meaning  of  the  statute,  can  only  be  made  by  an 
actual,  ineffectual  deed,  done  in  pursuance  of,  and  in  further- 
ance of,  the  design  to  commit  the  offence.  But  if  the  parties 
combined  to  commit  the  offence,  and  they  all  assented  to  it,  and 
a  part  of  them  only  went  to  do  the  act,  those  who  were  absent^ 
knowing  with  what  intent  the  others  went  to  the  place,  and 
assenting  to  the  same,  are  principals  in  the  offence. 

The  overt  act  done  in  the  attempt  to  commit  the  offence  need 
not  be  the  last  proximate  act  prior  to  the  consummation  of  the 
felony  attempted  to  be  perpetrated. 

In  Cunningham's  Case,  88  Va.,  37,  decided  June  18,  1891,  it 
was  held :  An  indictment  for  attempt  to  commit  rape,  some  act 
towards  its  commission  must  be  alleged,  but  to  aver  that  accused 
"violently  and  feloniously  made  an  assault"  in  the  attempt  is 
sufficient. 

Section  3889. 

In  Chichester's  Case,  1  Va.  Cases,  312,  decided  by  the  General 
Court.  An  indictment  for  assault  was  brought  within  a  year, 
but  was  held  insufficient ;  after  a  year  had  expired  another  in- 
dictment was  found.     Held  :  Barred  by  the  statute. 

In  Birchett's  Case,  2  Va.  Cases,  51,  decided  June,  1816,  it 
was  held:  An  information  in  the  nature  of  a  writ  of  quo  war- 
ranto, though  in  form  a  criminal  proceeding,  yet  is  in  substance 
a  civil  proceeding,  for  the  trial  of  a  civil  right,  and  therefore 
the  act  which  limits  the  prosecution  of  informations  on  any  penal 
law  to  one  year  does  not  apply  to  such  informations. 

In  Auditor  vs.  Graham,  1  Call,  475  (2d  edition,  411),  decided 


1020  Citations  to  the  Code  op  Virginia. 

October  22,  1798,  it  was  lield  :  Motions  are  included  in  the 
terms  "suits"  and  "actions"  in  the  act  of  1789  for  limitation 
of  actions  upon  penal  statutes. 

In  Earharfs  Case,  9  Leigh,  671,  decided  by  the  General 
Court,  December,  1839,  it  was  held :  After  a  verdict  of  convic- 
tion for  misdemeanor,  an  appellate  court  will  presume  that  the 
offence  was  proved  to  have  been  within  the  period  of  Hmita- 
tions,  where  the  record  does  not  show  the  contrary. 

In  Christian's  Case,  7  Grat.,  631,  decided  June,  1850,  by  the 
General  Court,  it  was  held :  A  presentment  for  a  misdemeanor 
is  the  commencement  of  the  prosecution,  and  unless  the  prose- 
cution is  then  barred  by  the  statute  of  limitations  it  will  not  be 
barred  by  the  failure  to  find  an  information  or  indictment  upon 
the  presentment  before  the  time  of  limitation  runs  out.  Upon 
a  rule  the  defendant  again  appears  and  moves  to  quash  the 
presentment  on  the  ground :  Because  the  supposed  offence  must 
be  committed  more  than  a  year  before  granting  the  rule  to  file 
the  information,  and  so  was  barred  by  the  statute  of  limita- 
tions. Held :  That  under  the  facts  and  circumstances  of  the 
case  the  act  of  limitations  does  not  protect  the  defendant  against 
further  prosecution  by  information. 

Section  3892. 
In  Lintoris  Case,  2  Ya.  Cases,  205,  decided  by  the  General 
Court,  June,  1820,  it  was  held :  If  a  person  be  stabbed  in  this 
State,  and  dies  of  his  wounds  in  another,  the  prisoner  cannot 
be  tried  for  murder  in  any  county  of  the  Commonwealth,  but 
he  may  be  examined,  indicted,  and  tried  for  the  felonious  stab- 
bing in  the  county  where  the  blow  was  inflicted. 

Section  3893. 

In  Gibson's  Case,  2  Ya.  Cases,  70,  decided  by  the  General 
Court,  June,  1817,  it  was  held:  If  a  verdict  be  argued  on  and 
written  out  in  the  jury  room  and  then  brought  into  court,  read 
by  the  clerk,  and  corrected  in  an  immaterial  point,  and  then  re- 
ceive the  assent  of  eleven  jurors  (the  twelfth  being  sick,  having 
meantime  withdrawn  to  the  jury  room  without  the  knowledge  of 
the  court  or  the  other  jurors)  it  is  a  nullity. 

A  verdict  in  such  case  having  been  set  aside  as  insuflBcient,  a 
venire  facias  de  novo  may  be  awarded  and  a  new  trial  had,  either 
on  the  same  indictment  or  another. 

In  Quann's  Case,  2  Ya.  Cases,  89,  decided  by  the  General 
Court,  November,  1817.  An  acquittal  of  forging  an  order,  and 
of  uttering  as  true  a  forged  order,  is  no  bar  to  a  prosecution  for 
the  misdemeanor  of  fraudulently  obtaining  goods  by  means  of 
a  false  privy  token  and  counterfeit  letter,  the  said  privy  token 
being  the  same  order  of  the  forgery  and  uttering  of  which  he 
had  been  acquitted. 


Citations  to  the  Code  of  Vieginia.  1021 

In  Yaughan's  Case,  2  Va.  Cases,  273,  decided  by  the  General 
Court,  November,  1821,  it  was  held :  If  a  person  be  indicted  for 
shooting  S.  W.  and  acquitted  thereof,  and  then  indicted  for 
shooting  J.  W.,  her  plea  of  autrefois  acquit  will  not  be  supported, 
although  the  same  act  of  shooting  is  charged  in  each  indictment, 
for  the  jury  who  tried  the  first  indictment  might  have  acquitted 
the  prisoner  on  several  grounds,  which  would  not  aflfect  the 
second  trial,  as  that  the  shot  did  not  strike  and  wound  S.  W.  or 
that  she  did  not  shoot  S.  W.  with  intent  to  maim,  disfigure,  dis- 
able or  kill  the  said  S.  W. 

If  the  prisoner  to  an  indictment  for  shooting  J.  W.  plead  that 
she  had  been  indicted  and  acquitted  of  the  shooting  of  S.  W., 
and  that  the  shooting  of  which  she  is  indicted  is  the  identical 
shooting  of  which  she  had  before  been  acquitted  and  no  other, 
and  the  verdict  find  "that  she  hath  not  before  been  acquitted 
of  the  same  offence,"  this  finding  is  sufficiently  responsive  to  the 
issue  on  that  plea  and,  therefore,  good. 

In  Mortimer's  Case,  2  Va.  Cases,  325,  decided  November, 
1822,  it  was  held :  If  a  prisoner  be  acquitted  of  burning  the  barn 
of  Josiah  Thompson,  he  cannot  plead  this  in  bar  of  an  indict- 
ment for  burning  the  barn  of  Josias  Thompson. 

In  Lindsay's  Case,  2  Va.  Cases,  345,  decided  by  the  General 
Court,  June,  1823,  it  was  held:  A  nolle  prosequi  entered  by  the 
attorney  for  the  Commonwealth  and  a  consequent  discharge 
from  custody,  is  not  an  acquittal  or  discharge  from  further  prose- 
cution, and,  therefore,  does  not  support  the  plea  of  autrefois 
acquit. 

In  Jackson's  Case,  2  Va.  Cases,  501,  decided  June,  1826,  by 
the  General  Court,  it  was  held :  If  a  person  charged  with  an 
assault  and  battery  be  recognized  to  appear  at  the  next  superior 
court  to  answer  an  indictment  to  be  then  and  there  preferred 
against  him  for  the  said  offence,  in  the  meantime  fraudulently 
procure  himself  to  be  indicted  for  the  same  offence  in  the  county 
court,  and  confess  his  guilt,  and  a  small  amercement  be  there- 
upon assessed  on  him,  such  fraudulent  prosecution  and  convic- 
tion present  no  bar  to  the  indictment  preferred  against  him  in 
the  superior  court.  The  plea  of  autrefois  convict  in  such  a  case 
being  replied  to  specially,  the  replication  which  sets  forth  such 
fraudulent  prosecution  and  conviction,  being  well  drawn,  is  a 
sufficient  answer  to  the  defendant's  plea,  and  should  be  adjudged 
good  on  demurrer. 

The  reference  to  81  Va.,  290,  is  an  error. 

Section  3894. 
In  Williams's  Case,  2  Grat.,  568,  decided  December,  1845,  by 
the  General  Court,  it  was  held :  If  the  court  improperly  dis- 
charge the  jury  without  the  consent  of  the  prisoner,  he  is  enti- 
tled to  be  discharged  from  the  prosecution. 


1022  Citations  to  the  Code  of  Virginia. 

In  Smith's  Case,  7  Grat.,  593,  decided  June,  1850,  by  the 
General  Court,  it  was  held :  A  conviction  for  advising,  etc.,  one 
slave  to  abscond  is  not  a  bar  to  a  prosecution  for  advising,  etc., 
another  slave  to  abscond,  though  the  advising,  etc.,  was  to  both 
at  one  time,  and  by  the  same  words  and  acts. 

In  Adock's  Case,  8  Grat.,  661,  decided  December,  1851,  by 
the  General  Court.  A  prisoner  is  remanded  by  the  examining 
court  to  be  tried  for  embezzling  the  goods  of  W.;  he  may  there- 
upon be  indicted  for  embezzling  the  goods  of  A.,  the  embezzle- 
ment being  of  the  same  goods  for  which  he  was  tried  by  the 
examining  court. 

A  prisoner  is  indicted  for  embezzling  the  goods  of  W.,  and  at 
the  fifth  term  after  he  was  examined  for  the  offence  he  is  tried 
and  convicted,  but  the  verdict  is  set  aside  for  a  variance  be- 
tween the  allegation  and  the  proof  as  to  the  ownership  of  the 
goods,  and  the  case  is  continued.  At  the  next  term  of  the  court 
the  attorney  for  the  Commonwealth  enters  a  nolle  prosequi  upon 
the  indictment,  and  the  prisoner  is  indicted  again  for  the  same 
offence,  the  indictment  in  the  first  count  being  the  same  as  in 
the  former  indictment,  and  another  count  charging  the  goods 
embezzled  to  be  the  goods  of  A.  Upon  his  arraignment  he 
moves  the  court  to  discharge  him  from  the  offence,  on  the 
ground  that  three  regular  terms  of  the  court  had  been  held 
since  he  was  examined  and  remanded  for  trial,  without  his  be- 
ing indicted.  The  attorney  for  the  Commonwealth  opposes  the 
motion,  and  offers  the  record  of  the  proceedings  of  the  circuit 
court  upon  the  first  indictment,  to  show  that  he  had  been  in- 
dicted, tried,  and  convicted ;  which  was  objected  to  by  the  pri- 
soner. Held :  The  record  is  competent  evidence,  and  the  only 
competent  evidence  upon  the  question.  The  second  indictment 
being  for  the  same  act  of  embezzling  as  the  first,  and  the.  pri- 
soner having  been  indicted,  tried,  and  convicted  in  time,  and 
the  verdict  having  been  set  aside  for  the  variance,  the  second 
indictment  was  proper  in  time,  and  the  prisoner  is  not  entitled 
to  be  discharged. 

In  Jones's  Case,  20  Grat.,  848,  decided  April,  1871,  it  was 
held :  On  trial  for  felony,  for  which  the  shortest  term  of  impri- 
sonment is  five  years,  the  jury  find  the  prisoner  guilty  and  fix 
the  term  of  his  imprisonment  in  the  penitentiary  for  three  years, 
and  the  judgment  is  according  to  the  verdict.  Upon  a  writ  of 
error  to  the  judgment  on  the  application  of  the  prisoner,  the 
judgment  will  be  reversed,  but  the  prisoner  will  not  be  dis- 
charged, but  will  be  remanded  for  another  trial. 

In  Day's  Case,  23  Grat.,  915,  decided  January,  1873,  it  was 
held:  A  plea  of  autrefois  acquit,  if  it  is  good  in  substance, 
though  informal,  will  be  sustained,  though  demurred  to.  In  the 
first  place  the  defendant  is  charged  as  the  "  keeper  of  a  house 


Citations  to  the  Code  of  Virginia.  1023 

of  entertainment,"  in  the  second,  as  "keeper  of  an  ordinary." 
The  offence  cliarged  in  both  being  the  same,  not  only  in  kind, 
but  in  fact,  the  acquittal  in  the  first  case  is  a  bar  to  the 
second. 

In  Burresss  Case,  27  Grat.,  934,  decided  January  13,  1876, 
it  was  held :  To  a  plea  of  autrefois  acquit,  upon  an  indictment 
for  forgery,  the  attorney  for  the  Commonwealth  craves  oyer  of 
the  former  record  and  demurs  to  the  plea. 

The  record  shows  that  the  indictment  was  for  forging  an 
order  for  forty-seven  dollars  and  twenty-five  cents,  and  that  the 
order  was  for  forty-seven  dollars  and  twenty-three  cents. 

This  was  a  variance  which  entitled  the  accused  to  an  acquit- 
tal on  that  indictment,  and  therefore  the  acquittal  on  that  in- 
dictment does  not  forbid  the  prosecution  of  the  accused  on 
another  indictment  for  the  same  forgery,  setting  out  the  order 
correctly. 

A  person  acquitted  by  the  jury  on  the  facts  and  merits  on  a 
former  trial,  may  plead  such  acquittal  in  bar  to  a  second  prose- 
cution for  the  same  offence,  notwithstanding  any  defect  in  the 
form  or  substance  of  the  indictment  or  accusation  on  which  he 
was  acquitted.  But  it  must  appear  from  the  record  of  the  first 
case,  or  be  averred  in  the  plea  and  proved,  that  his  acquittal 
was  on  the  merits. 

The  act  does  not  make  a  variance  between  the  indictment 
^nd  the  forged  paper  immaterial.  The  accused  must  be  ac- 
quitted on  that  ground  if  no  other,  and,  if  acquitted,  the  presump- 
tion, in  the  absence  of  evidence  to  the  contrary,  is  that  he  was 
acquitted  on  that  ground. 

In  Page's  Case,  27  Grat.,  954,  decided  February  3,  1876,  it 
was  held :  A  prisoner  indicted  for  felony  files  a  plea  of  autrefois 
acquit,  and  makes  the  record  of  his  former  trial  a  part  of  his 
plea,  and  he  avers  that  the  offence  for  which  he  had  been  be- 
fore tried  is  the  same  offence  for  which  he  is  now  on  trial,  and 
necessary  evidence  to  convict  him  in  the  present  indictment,  if 
introduced,  would  have  convicted  him  on  the  first  trial.  The 
attorney  for  the  Commonwealth  replies  that  there  is  no  record 
of  the  trial  of  the  prisoner  for  the  same  identical  felony  and 
offence  charged  in  the  indictment  on  which  the  prisoner  is  then 
arraigned.  The  replication  denies  one  of  the  essential  aver- 
ments of  the  plea,  viz.:  that  the  offence  was  the  same  as  that 
for  which  the  prisoner  had  been  before  tried,  and  is,  therefore, 
a  good  replication  to  the  plea. 

In  such  a  case  it  would  not  have  been  proper  to  traverse  the 
allegation  that  the  evidence  necessary  to  convict  him,  etc.  The 
two  indictments  being  for  similar  offences,  and  in  the  same 
words,  except  as  to  time,  which  is  immaterial,  of  course  the 
same  facts  which  sustain  the  one  would,  standing  by  themselves, 


1024  Citations  to  the  Code  of  Virginia. 

sustain  the  other;  but  when  it  is  averred  and  shown  that  the  two- 
offences,  though  similar,  are  not  in  fact  the  same,  but  different  of- 
fences, all  foundation  for  the  plea  is  taken  away.  Upon  the  trial  of 
the  issue  on  the  plea  of  autrefois  acquit,  an  instruction  to  the  jury 
that  if  they  beheve,  etc.,  that  the  house  named  in  the  indict- 
ment, for  the  burning  of  which  the  prisoner  was  arraigned  and 
tried  at  a  previous  term  of  the  court,  is  not  the  same  house,  nor 
the  same  burning  charged  in  the  indictment  upon  which  he  now 
stands  arraigned,  then  they  must  find  against  the  prisoner  that 
the  issue  joined  is  correct;  and  it  makes  no  difference  that  the 
offences  charged  in  the  two  indictments  are  described  as  the 
burning  of  the  dwelling-house  of  R.,  if  the  jury  believe  that  in 
reality  distinct  houses  and  distinct  burnings  are  referred  to  in 
the  two  indictments. 

On  the  trial  of  the  issue  on  the  plea  of  autrefois  acquit,  R., 
whose  dwelling-house  was  in  both  indictments  alleged  to  have 
been  burned,  and  who  was  the  principal  witness  for  the  Com- 
monwealth as  to  the  burnings  on  both  trials,  may  be  asked  and 
may  state  whether  or  not  the  verdict  of  the  jury  had  relation  to 
the  house  charged  to  have  been  burned  in  the  indictment  on 
which  the  prisoner  was  then  arraigned.  The  inquiry  is  as  to  a 
"  fact "  not  an  "  opinion." 

The  court  may  direct  jurors  to  be  summoned  from  another 
county  or  corporation  for  the  trial  of  a  prisoner  upon  the  is- 
sue on  the  plea  of  autrefois  acquit,  as  well  as  on  the  general 
issue. 

In  Stuart's  Case,  28  Grat.,  950,  decided  July,  1877,  it  was 
held :  The  mere  pendency  of  one  indictment  is  no  bar  to  another, 
even  for  the  same  offence;  the  accused  cannot  be  tried  on 
both,  but  the  Commonwealth  may  elect  on  which  it  will  prose- 
cute. 

The  discharge  of  a  jury  after  they  have  rendered  a  verdict 
against  a  prisoner,  but  which  verdict  is  adjudged  to  be  a  nullity 
because  it  was  not  duly  perfected,  and  thereupon  set  aside  as  in- 
sufficient, is  no  bar  to  a  prosecution  under  the  same  or  a  new 
indictment. 

The  reference  to  32  Grat.,  872,  is  to  a  case  in  which  the  statute 
is  not  construed,  but  only  quoted  as  a  final  disposition  of  ques- 
tions raised. 

Section  3895. 

In  Bi'ovm's  Case,  9  Leigh,  633,  decided  by  the  General  Court, 
December,  1838,  it  was  held :  Where  the  confession  of  a  pris- 
oner is  given  in  evidence,  the  whole  must  go  to  the  jury ;  but  the 
whole  is  not  necessarily  to  be  taken  as  true ;  on  the  contrary,  if 
from  opposing  evidence  or  the  confession  itself,  facts  appear 
which  are  sufficient  to  satisfy  a  rational  mind  that  a  part  is  not 
true,  it  ought  to  be  disregarded. 


Citations  to  the  Code  of  Virginu.  1025 

In  SmitKs  Case,  10  Grat.,  734,  decided  July,  1853,  it  was 
held :  On  a  trial  for  felony,  a  confession  of  the  prisoner  may  be 
given  in  evidence,  unless  it  appears  that  the  confession  was  ob- 
tained from  the  party  by  some  inducement  of  a  worldly  or  a 
temporal  character  in  the  nature  of  a  threat,  or  promise  of  bene- 
fit, held  out  to  him  in  respect  of  his  escape  from  the  conse- 
quences of  the  offence,  or  the  mitigation  of  the  punishment,  by 
a  person  in  authority,  or  %\ath  the  apparent  sanction  of  such 
person. 

A  person  to  whom  a  free  negro  is  bound  as  an  apprentice, 
though  a  justice  of  the  peace,  if  not  acting  as  such,  and  no  way 
effected  by  the  offence,  is  not  a  person  in  authority  in  the  sense 
of  the  rule  which  excludes  confessions  made  to  a  person  in  au- 
thority. 

In  Shiffiefs  Case,  14  Grat.,  652,  decided  March  9,  1858,  it  was 
held :  A  young  man  living  in  the  jailer's  family,  and  who  occa- 
sionally, in  the  absence  of  the  jailer,  attended  on  the  prisoners 
and  kept  the  keys  of  the  jail,  is  not  a  person  in  authority  whose 
threat  or  promise  will  exclude  the  confessions  of  a  prisoner  in 
the  jail  awaiting  his  trial.  A  prisoner  is  told,  in  answer  to  his 
assertion  of  his  innocence,  that  the  person  to  whom  he  is  speak- 
ing does  not  believe  one  word  he  says,  but  that  such  person  be- 
lieves he  knows  all  about  it,  and  his  mother  too.  Prisoner  de- 
clares that  his  mother  knew  nothing  about  it.  He  is  then  told 
he  need  not  say  anything  more  about  it,  for  that  he  had  to  go 
to  the  penitentiary  anyhow.  He  says  he  knows  that,  but  that 
his  mother  is  innocent  of  it ;  and  he  requests  the  person  to  whom 
he  is  talking  to  go  and  tell  certain  persons  he  names  to  come  to 
him.  The  person  then  says.  What  do  you  mean  by  what  you 
say  ?  In  the  name  of  God  and  all  that  is  holy,  have  you  let 
this  charge  rest  on  your  mother,  and  she  innocent  of  it  ?  Pris- 
oner again  repeats  she  was  innocent,  and  requests  that  the  per- 
sons he  had  named  may  be  sent  for,  which  is  done;  and  he 
makes  confessions  to  them.  Held :  There  was  no  inducement 
held  out  to  the  prisoner  which  will  exclude  his  confession. 

See  Vaughans  Case,  17  Grat.,  576,  cited  ante,  Section  3704. 

In  Thompson's  Case,  20  Grat.,  724,  decided  November,  1870, 
it  was  held :  That  a  confession  of  a  prisoner  tried  for  murder  is 
voluntary,  is  a  condition  precedent  of  its  admissibility,  and  the 
court  must  be  satisfied  that  the  confession  was  voluntary  before 
it  can  be  permitted  to  go  to  the  jury;  the  burden  of  proof  that 
it  was  voluntary  is  on  the  Commonwealth. 

Though  a  confession  may  be  inadmissible  because  not  volun- 
tary, it  may  become  admissible  by  being  subsequently  repeated 
by  the  accused  when  his  mind  is  perfectly  free  from  the  undue 
influence  which  induced  the  original  confession,  jyima  facie,. 
the  undue  influence  will  be  considered  as  continuing,  though 
65 


1026  Citations  to  the  Code  of  Vieginia. 

the  presumption  will  be  repelled  by  evidence,  which,  however, 
must  be  strong  and  clear. 

In  Yenable's  Case,  24  Grat.,  639,  decided  November,  1873,  it 
was  held :  Prisoner  charged  with  murder  makes  a  confession  to 
a  police  oflScer  on  the  morning  of  the  day  he  is  examined  by 
the  police-justice.  Before  that  examination  he  has  employed 
counsel,  and  is  warned  both  by  his  counsel  and  the  police-jus- 
tice against  making  any  statement  or  confession.  Being  com- 
mitted by  the  justice,  on  getting  to  the  jail  he  appears  to  be 
very  much  frightened  and  agitated;  and  upon  getting  there 
he  makes  a  confession,  and  again,  on  the  same  day,  confesses 
the  deed  to  a  woman  of  his  acquaintance  who  is  in  the  jail. 
Though  the  confession  to  the  police-officer  was  properly  ex- 
cluded, the  confession  made  after  the  warnings  given  him  is 
proper  evidence. 

In  Little's  Case^  25  Grat.,  921,  decided  September,  1874,  it 
was  held:  On  the  trial  of  a  prisoner  for  murder,  a  statement 
made  by  him  to  a  person  a  few  minutes  after  the  homicide 
was  committed,  and  near  to  the  place,  and  in  the  presence  and 
hearing  of  eye-witnesses  oi  the  homicide,  who  were  not  intro- 
duced as  witnesses  by  the  Commonwealth,  should  be  admitted 
as  evidence  at  the  instance  of  the  prisoner,  as  part  of  the  7'es 
gestce.  At  least  the  statement  should  have  been  heard  by  the 
court  below,  so  that  the  court  might  determine  whether  all  or 
any  part  of  it  was  admissible  evidence,  and  that  the  appellate 
court  might  reverse  the  judgment  in  that  respect. 

In  Page's  Case,  27  Grat.,  954,  decided  February  3,  1876,  it 
was  held :  The  admissions  and  confessions  of  a  prisoner  may 
be  given  in  evidence  against  him. 

See  William^'' s  Case,  27  Grat.,  997,  cited  a7ite,  Section  3707. 

In  ParrisKs  Case,  81  Va.,  1,  decided  November  28,  1884,  it 
was  held:  If  the  prosecution  uses  prisoner's  statements,  the 
whole  must  be  taken  together,  and  one  part  cannot  be  taken 
and  the  other  left  out. 

In  Sprouse's  Case,  81  Va.,  374,  decided  January  21,  1886,  it 
was  held:  Accused  will  not  be  permitted  to  make  evidence  in 
his  own  favor  by  proving  his  self-servient  declarations. 

In  Brown's  Case,  89  Va.,  379,  decided  November  10,  1892. 
Where  all  the  evidence  is  purely  circumstantial,  and  the  circum- 
stances themselves  are  not  satisfactorily  proved  and  are  insuffi- 
cient to  establish  clearly  that  the  fire  was  of  incendiary  origin, 
and,  if  so,  then  to  prove  the  guilt  of  the  accused,  though  at  third 
trial  one  detective  testified  to  admissions  made  to  him  about 
the  time  of  the  fire  which  he  had  never  mentioned  before  at  the 
other  trials,  though  he  was  a  witness  at  both,  and  another  de- 
tective testified  as  to  admissions  made  to  him  in  jail  since  the 
second  trial,  when  he  was  kept  in  the  accused's  cell  for  several 


Citations  to  the  Code  of  Virginia.  1027 

days  and  nights,  ostensibly  as  a  murderer,  and  acknowledging 
his  giiilt  as  to  the  accused.  Held :  The  testimony  of  the  detec- 
tive being  replete  with  suspicion,  the  verdict  should  be  set  aside. 

Section  3897. 

In  Price's  Case,  11  Va.,  393,  decided  April  12,  1883,  it  was 
held :  Where  in  such  case  accused  does  not  testify,  it  is  im- 
proper for  prosecuting  attorney  to  comment  on  that  fact.  But 
if  exception  is  not  taken  thereto  till  after  verdict,  it  is  too  late, 
unless,  under  all  the  circumstances,  the  court  can  see  that  a 
proper  verdict  has  been  rendered  and  the  accused  not  injured 
by  the  comment. 

In  Sutton's  Case,  85  Va.,  128,  decided  July  19,  1888,  it  was 
held :  Remark  of  prosecuting  attorney  to  the  jury  that  prisoner 
had  not  accounted  for  his  whereabouts  at  time  of  homicide  nor 
his  flight  from  the  State  without  allusion  to  his  failure  to  testify, 
comes  not  within  this  section. 

In  Sawyer's  Case^  88  Va.,  356,  decided  September  17,  1891, 
it  was  held :  A  remark  of  prosecuting  attorney  that  "  though  he 
had  no  right  to  swear  any  man  accused  of  crime,  he  had  the 
right  to  prove  his  statement,"  is  no  violation  of  this  section. 

Section  3898. 

In  Barhour's  Case,  80  Va.,  287,  decided  March  12,  1885,  it 
was  held  (p.  290) :  Conviction  of  petit  larceny  does  not,  in  this 
State,  disqualify  one  as  a  witness, 

A  witness  cannot  be  impeached  by  proof  of  particular  acts 
and  offences  committed  by  him. 

In  Benton  s  Case,  89  Va.  570,  decided  January  26,  1893.  A 
person  was  convicted  of  breaking  and  entering  a  house  in  the 
night-time  with  intent  to  steal.  At  the  trial  the  jury  assessed 
his  punishment  at  imprisonment  in  the  county  jail  and  a  fine. 
Held  :  He  was  guilty  of  a  felony,  and  not  haring  been  pardoned 
or  punished  therefor,  was  an  incompetent  witness. 

Section  3899. 
See  Eendrick's  Case,  78  Va.,  490,  cited  ante.  Section  3692. 

Section  3900. 

In  CampbelVs  Case,  2  Va.  Cases,  314,  decided  by  the  General 
Court,  June,  1822,  it  was  held :  When  two  persons  are  jointly 
indicted  of  a  felony  and  severally  tried,  the  co-defendant  in  the 
same  indictment  is  not  a  competent  witness  for  the  prisoner  un- 
less that  co-defendant  has  been  acquitted. 

In  Byrdh  Case,  2  Va.  Cases,  490,  decided  by  the  General 
Court,  June,  1826,  it  was  held :  An  accomplice  is  unquestion- 
ably a  competent  witness  against  a  prisoner  charged  with  crime. 


1028  Citations  to  the  Code  op  Virginia. 

The  admissibility  of  an  accomplice  does  not  depend  on  the 
ancient  and  exploded  doctrine  of  approvement. 

In  Lazier' s  Case,  10  Grat.,  708,  decided  July,  1853,  it  was 
held :  Two  persons  being  jointly  indicted  for  the  same  offence, 
and  being  tried  separately,  one  is  not  an  incompetent  witness 
for  the  other  by  the  reason  of  the  joint  indictment. 

Section  3901. 

In  Oliver's  Case,  11  Va.,  590,  decided  July  19,  1883,  it  was 
held :  Though  conspiracy  has  been  proved,  statements  of  a  con- 
spirator made  after  the  object  of  the  conspiracy  is  accomplished 
are  admissible  to  criminate  his  co-conspirators. 

In  Kirhy's  Case,  11  Va.,  681,  decided  September  13,  1883,  it 
was  held:  The  inadmissibility  of  declarations  of  the  injured 
party  as  part  of  the  res  gestoe  depends  on  whether  or  not  they 
were  made  recently  after  the  injury,  before  sufficient  time  had 
elapsed  for  the  fabrication  of  a  story. 

Code  1873,  Chapter  195,  Section  22,  provided  that  "in  a 
criminal  prosecution,  other  than  for  injury  on  an  action  on  a 
penal  statute,  evidence  shall  not  be  given  against  the  accused 
of  any  statement  made  by  him  as  witness  upon  a  legal  exami- 
nation. Therefore  evidence  that  a  statement  of  witnesses  for 
the  accused  conflict  with  the  testimony  of  the  accused  as  de- 
livered on  his  examination  as  a  witness  at  a  former  trial,  is  in- 
admissible. 

Section  3904. 

The  reference  to  1  Va.  Cases,  79  is  an  error. 

In  Crump's  Case,  1  Va.  Cases,  172,  decided  by  the  General 
Court,  it  was  held :  In  cases  of  misdemeanor,  judgment  for  fine 
only  may  be  rendered. 

This  maybe  done  in  the  absence  of  the  prisoner  and  no  judg- 
ment of  imprisonment  can  be  so  rendered  save  the  statute  under 
which  indictment  found  specially  authorize  such  proceeding. 

In  Ray's  Case,  1  Va.  Cases,  262,  decided  by  the  General  Court, 
it  was  held :  A  fine  ought  to  be  assessed  against  each  prisoner 
separately,  and  when  jointly  assessed  it  is  greund  for  a  new 
trial. 

In  Jones's  Case,  1  Call,  555  (2d  edition,  482),  decided  April 
22,  1799,  it  was  held :  In  an  indictment  for  an  assault  against 
several,  a  joint  award  of  one  fine  against  all  is  erroneous,  it 
should  have  been  several  against  each  defendant. 

In  House's  Case,  8  Leigh,  755,  decided  by  the  General  Court, 
December,  1837.  On  such  indictment  the  jury  find  defendant 
guilty,  ascertain  the  term  of  his  imprisonment,  and  assess  the 
fine,  and  the  court  renders  judgment  according  to  the  verdict. 
Held :  There  is  no  error  in  such  proceeding. 

In  Fifer's  Case,  14  Grat.,  710,  decided  August  30,  1858,  it 


Citations  to  the  Code  of  Virginia.  1029 

was  held :  On  a  prosecution  for  a  misdemeanor  there  is  a  ver- 
dict against  the  defendant  for  a  fine,  and  the  court  enters  up  a 
judgment  thereon  for  the  fine  and  costs,  and  directs  a  capias  ad 
audiendum  against  the  defendant,  and  a  subsequent  term  sen- 
tences him  to  six  months  imprisonment  in  the  county  jail.  The 
judgment  for  the  fine  and  costs  was  final,  and  no  further  judg- 
ment could  be  rendered  in  the  case.  The  judgment  for  the  im- 
prisonment was  therefore  error. 

In  liead's  Case,  24  Grat.,  618,  decided  November,  1873,  it  was 
held :  The  accused  having  been  tried  by  a  jury  in  the  county 
court  and  found  guilty  and  sentenced,  the  errors  in  the  proceed- 
ings of  the  justice  on  his  second  trial  cannot  affect  the  judg- 
ment of  the  county  court. 

Section  3905. 

In  Rand^s  Case,  9  Grat.,  738,  decided  November  17,  1852,  it 
was  held :  The  act  applies  to  the  case  of  a  prisoner  on  trial  who 
had  been  convicted  and  sentenced  previous  to  the  passage  of  this 
act. 

The  act  as  applicable  to  such  a  case  is  not  ex  post  facto  and 
unconstitutional. 

The  act  does  not  apply  to  the  case  of  a  conviction  for  an  of- 
fence committed  after  commission  of  that  for  which  the  prisoner 
is  on  trial.  The  indictment  must  set  out  the  time  and  place  of 
the  first  conviction,  and  must  show  that  the  previous  conviction 
was  for  an  offence  committed  before  the  commission  of  that  for 
which  the  prisoner  is  on  trial. 

Evidence  having  been  improperly  admitted  to  prove  a  former 
conviction,  the  whole  judgment  must  he  reversed,  and  a  new 
trial  awarded.' 

See  Rider's  Case,  16  Grat.,  499,  cited  ante,  Section  3879. 

In  White's  Case,  79  Va.,  611,  decided  December  4, 1884,  it  was 
held  :  Motion  for  continuance  rests  in  the  sound  discretion  of  the 
court.  But  where  one  is  convicted  and  sentenced  on  an  indict- 
ment "for  the  first  offence,"  and  judgment  is  suspended  by  writ 
of  eiTor  and  supersedeas  awarded  by  this  court,  and,  pending 
such  suspension,  an  indictment  against  the  same  one,  under  the 
same  act,  "for  the  second  offence,"  is  called  for  trial,  and  the 
defendant  moves  the  court  to  continue  the  case  until  this  court 
decides  the  case  before  it  as  aforesaid,  the  court  below  should 
sustain  the  motion  and  grant  the  continuance. 

Section  3907. 
See  the  references  to  Section  3905,  supra. 

Section  3908. 
The  reference  to  1  Va.  Cases,  157,  is  an  error. 


1030  Citations  to  the  Code  op  Yirginia. 


TITLE    LIII. 

CHAPTEE  CXCI. 

Section  3913. 

In  Spengler  vs.  Davy,  15  Grat.,  381,  decided  September  5, 
1859,  it  was  held,  page  388 :  Probable  cause  is  said  to  be  "  a 
reasonable  ground  of  suspicion,  supported  by  circumstances 
sufficiently  strong  in  themselves  to  warrant  a  cautious  man  in 
his  belief  that  the  person  accused  is  guilty  of  the  offence  with 
which  he  is  charged." 

In  the  case  of  Scott  <&  Boydys.  Shelor,  28  Grat.,  891,  decided 
July,  1877,  it  was  held:  Probable  cause  in  a  criminal  prosecu- 
tion is  the  existence  of  such  facts  and  circumstances  as  would 
excite  the  belief  in  a  reasonable  mind,  acting  on  the  facts  with- 
in the  knowledge  of  the  prosecutor,  that  the  person  charged  was 
guilty  of  the  crime  for  w^hich  he  was  prosecuted. 

Section  3914. 

In  the  case  otMells  vs.  Jackson,  3  Munf.,  458,  decided  March 
26,  1814,  it  was  held :  A  warrant  to  arrest  a  person  of  whom 
surety  for  the  peace  is  demanded,  being  executed  neither  by  a 
sworn  officer  nor  by  the  person  to  whom  it  was  directed  by  the 
magistrate,  but  by  an  individual  selected  by  the  prosecutor, 
who  erased  the  name  of  the  person  appointed  by  the  magis- 
trate and  substituted  that  of  the  person  selected  by  himself,  is 
thereby  rendered  altogether  illegal  and  void  as  a  justification, 
but  may  be  given  in  mitigation  of  damages. 

A  warrant  directing  the  "associates"  of  persons  named  to  be 
arrested,  without  mentioning  the  names  of  such  associates,  is 
illegal  and  void  as  to  them. 

Section  3915. 

In  WortTiarrHs  Case,  5  Rand.,  669  (quoted  as  675),  decided  by 
the  General  Court,  November,  1827,  it  was  held:  A  volunteer 
informer  ought  to  be  made  a  prosecutor,  and  liable  for  costs  in 
case  of  failure,  but  one  who  is  compelled  to  be  an  informer  can- 
not be  considered  a  prosecutor. 

InWellings's  Case,  6  Grat.,  670,  decided  December,  1849,  by 
the  General  Court,  it  was  held:  The  county  court  has  authority 
to  require  a  party  to  enter  into  a  recognizance  to  keep  the  peace, 
at  least  where  the  proceeding  was  commenced  before  the  act  of 
1848. 

Section  3916. 

In  ReaWs  Case,  24  Grat.,  618,  decided  November,  1873,  it  was 
held :  When  a  person  is  tried  by  a  justice  of  the  peace  for  a 


Citations  to  the  Code  of  Virginia.  1031 

petit  larceny  and  convicted,  he  has  an  absolute  right  of  appeal 
to  the  county  court,  and  in  that  court  the  cause  is  to  be  heard 
de  novo  upon  the  evidence,  and  the  accused  is  entitled  to  be 
tried  by  a  jury  as  in  like  cases  originating  in  that  court. 

In  such  a  case  it  is  error  in  the  county  court  to  reverse  the 
judgment  of  the  justice,  and  remand  the  case  to  the  justice  to  be 
tried,  and  any  subsequent  trial  of  the  case  by  the  justice  is  null 
and  void.  In  such  case  the  justice  again  tries  and  convicts  the 
accused,  and  he  again  appeals  to  the  county  court.  The  proceed- 
ings before  the  justice  on  the  second  trial  being  null,  the  ac- 
cused is  in  the  county  court  upon  the  first  appeal,  and  is  to  be 
tried  by  a  jury  as  if  the  case  had  originated  in  that  court. 

The  accused  having  been  tried  by  a  jury  in  the  county  court, 
and  found  guilty  and  sentenced,  the  errors  in  the  proceedings  of 
the  justice  on  his  second  trial  cannot  affect  the  judgment  of  the 
county  court. 

Section  3927. 

See  Mesineris  Case,  26  Grat.,  976  and  985,  cited  ante^  Section 
3778. 

CHAPTER  CXCII. 
Section  3942. 

In  Jackson's  Case,  23  Grat.,  919,  decided  January,  1873.  A 
jury  of  inquest  find  that  the  deceased  was  killed  by  J.,  and  the 
justice  who  acted  as  coroner  issued  process,  upon  which  J.  is 
committed  to  prison.  The  grand  jury  in  the  county  court  find 
an  indictment  against  J.  for  murder,  and  he  is  brought  into 
court  and  arraigned,  and  on  his  arraignment  elects  to  be  tried  in 
the  circuit  court. 

The  testimony  of  witnesses  examined  before  a  jury  of  inquest, 
and  committed  to  writing,  cannot  be  used  to  impeach  the  evi- 
dence given  on  the  trial  of  the  prisoner,  unless  their  attention 
has  been  called  to  it,  and  to  any  discrepancies  between  that  and 
their  evidence. 

Section  3945. 

In  Wormley's  Case,  10  Grat.,  658,  decided  April,  1853.  Qiuere  : 
If  a  coroner  has  authority  to  commit  to  a  jail  for  trial  a  person 
charged  by  the  inquest  with  felony? 

If  he  has  not  such  authority,  it  is  too  late  to  object  to  it  after 
the  prisoner  has  been  regularly  examined  and  sent  on  for  trial, 
and  has  been  indicted  for  the  felony  in  the  circuit  court. 

A  justice  of  the  peace  acting  as  coroner,  and  having  as  coro- 
ner committed  a  person  to  jail  for  felony,  may  certify  the  fact 
of  such  committal  as  a  justice  of  the  peace. 

On  trial  for  murder,  to  contradict  a  witness  for  the  prisoner, 
it  is  competent  to  introduce  in  evidence  a  deposition  given  by 


1032  Citations  to  the  Code  op  Virginia. 

him  before  the  inquest  taken  doT\'n  at  the  time  by  the  coroner, 
and  read  to  the  witness  and  signed  by  him. 

See  Jackson's  Case,  23  Grat.,  cited  ante,  Section  3942. 

Section  3948. 
Por  the  reference  to  10  Grat.,  658,  see  aiite,  Section  3945. 

CHAPTEE  CXCIII. 

Section  3951. 
In  the  case  of  Faulkner  vs.  Alderson,  1  Va.  (Gilmer),  221,  de- 
cided March  30,  1821,  it  was  held :  The  landlord  of  a  tenant  at 
will,  may  peaceably  enter  the  premises,  but  an  illegal  search  for 
stolen  goods  makes  him  a  trespasser  ah  initio. 

CHAPTEE   CXCIV. 

Section  3956. 
See  Spengler  vs.  Davy,  15  Grat.,  381,  and  Seott  c&  Boyd  vs. 
Shelor,  28  Grat.,  891  and  905,  cited  ante,  Section  3913. 

Section  3957. 
In  the  case  of  Jones  vs.  Timherlake,  6  Eand.,  678,  decided  by 
the  General  Court,  November,  1828,  it  was  held :  Although  an 
escape-warrant  ought  regularly  to  show  on  its  face  that  the  per- 
son who  issues  it  is  a  justice  of  the  peace,  yet  on  a  habeas  corpus 
sued  out  by  the  person  arrested  under  it,  if  it  is  proved  that  he 
is  a  justice,  the  prisoner  ought  not  to  be  discharged. 

Section  3960. 

In  RuiherforWs  Case,  5  Eand.,  646,  decided  by  the  General 
Court,  November,  1826,  it  was  held:  When  a  prisoner  who  has 
been  remanded  for  trial  by  the  examining  court  to  the  superior 
court,  on  a  charge  of  felony,  and  against  whom  a  bill  of  indict- 
ment has  been  found  by  the  grand  jury,  applies  to  the  superior 
court  to  be  let  to  bail  on  the  ground  that  there  is  only  a  slight 
suspicion  of  guilt  against  him,  that  judgment  and  the  finding  of 
the  bill  are  not  conclusive  evidence  against  the  application,  but 
the  court  may  examine  other  evidence ;  but  it  is  a  question  for 
the  exercise  of  the  sound  discretion  of  the  court,  and  if  the  court 
is  satisfied  that  there  is  material  evidence  for  the  Commonwealth 
that  is  not  before  the  court,  was  not  before  the  examining  court, 
or  spread  on  the  record,  the  court  ought  not  to  sustain  the 
motion. 

In  the  case  of  John  Tyler  {Qovemor,  etc.)  vs.  Greenlato,  5 
Eand.,  711,  decided  by  the  General  Court,  November,  1827,  it 
was  held:  A  justice  of  the  peace,  before  whom  is  brought  a 
prisoner  charged  with  a  felony,  has  power  to  bail  him,  where 


Citations  to  the  Code  op  Vikginia.  1033 

only  a  slight  suspicion  of  guilt  falls  on  the  party,  and  a  recogni- 
zance taken  before  such  justice,  conditioned  for  the  appearance 
of  such  prisoner  before  the  examining  court  is  good,  and  a  re- 
covery may  be  had  thereon,  if  the  party  makes  default. 

Although  the  condition  of  a  cognizance  does  not  specify  the 
court-house  of  the  county  as  the  place  the  prisoner  is  to  appear, 
and  the  declaration  on  the  recognizance  avers  that  such  was  the 
condition,  yet  on  nul  tiel  record  pleaded,  judgment  ought  to  be 
rendered  for  the  plaintiff,  because  the  statute  points  out  that  as 
the  only  place  where  the  examination  shall  be  had. 

The  case  referred  to  as  3  Leigh,  561,  is  not  in  point. 

In  Semmes's  Case,  11  Leigh,  665,  decided  June,  1841,  by  the 
General  Court.  A  prisoner  in  close  jail,  upon  an  indictment  for 
murder,  applies  to  the  circuit  superior  court  in  term  time  to  be 
admitted  to  bail,  and  that  court  refuses  to  bail  him,  and  then 
he  presents  a  petition  to  the  General  Court  praying  to  be  let  to 
bail.  Held :  The  General  Court  has  original  concurrent  juris- 
diction with  the  circuit  superior  court,  and  with  the  judge  thereof 
in  vacation,  to  admit  the  prisoner  to  bail  for  good  cause  to  it 
shown. 

It  is  good  cause  for  admitting  to  bail  a  prisoner  confined  in 
close  jail  upon  an  indictment  for  murder,  that  he  is  laboring 
under  a  present,  painful,  severe,  and  dangerous  disease,  caused 
by  his  imprisonment,  and  likely  to  be  so  aggravated  by  a  con- 
tinuance thereof  as  probably  to  terminate  fatally. 

An  infant  prisoner  being  admitted  to  bail,  his  sureties  were 
required  to  enter  into  the  recognizance  of  bail,  without  his  join- 
ing therein  himself. 

The  General  Court  on  the  petition  of  a  prisoner  in  custody 
on  an  indictment  for  murder,  to  be  let  to  bail  on  account  of  the 
ill  state  of  his  health,  forbore  on  the  same  account  to  bring  him 
before  it  by  habeas  corpus,  heard  his  application  for  bail  in  his 
absence,  and  resolved  that  he  ought  to  be  let  to  bail,  whereupon 
the  judge  of  the  circuit  superior  court,  wherein  he  was  indicted, 
in  vacation  admitted  him  to  bail  accordingly. 
.  In  Greeris  Case,  11  Leigh,  677,  decided  by  the  General  Court, 
December,  1841.  Prisoner  examined  in  a  corporation  court 
and  sent  on  for  trial  in  the  circuit  superior  court  on  charge  of 
aiding  and  abetting  an  officer  of  a  bank  to  embezzle  money  and 
bank-notes  confided  to  his  care  to  the  amount  of  one  hundred 
thousand  dollars  or  more,  and  of  larceny  of  money  and  bank- 
notes of  the  bank  to  the  same  amount ;  twenty-  four  indictments 
are  preferred  against  him  for  aiding  and  abetting  the  officer  to 
embezzle,  and  for  larceny  of  twenty-four  several  sums  of  the 
same  money  at  several  times  as  several  and  distinct  offences ; 
prisoner  is  brought  to  trial  on  one  of  the  indictments  and  ac- 
xjuitted,  it  appears  that  the  indictments  are  founded  on  a  single 


1034  Citations  to  the  Code  of  Virginia. 

criminal  transaction,  and  though  the  acts  charged  in  the  indict- 
ment might  be  prosecuted  as  several  offences,  yet  they  might 
all  have  been  included  in  one  indictment.  Held:  The  acquittal 
of  the  prisoner  in  one  case  furnishes  such  a  presumption  of  his 
innocence  in  the  others  that  he  is  entitled  to  be  bailed. 

In  Swrntnerfield' 8  Case,  2  Eob.  767,  decided  by  the  General 
Court,  June,  1843.  A  prisoner  having  been  examined  by  the 
county  court  and  remanded  for  trial  for  the  offence  of  felonious- 
ly passing  two  counterfeit  half  eagles,  one  of  them  to  J.  C.  the 
other  to  W.  M.,  two  indictments  are  found  against  him,  in  one' 
of  which  he  is  charged  with  passing  one  of  the  counterfeit  coins 
to  J.  C.  on  the  13th  day  of  October,  1842,  in  the  other  with 
passing  the  other  coin  to  W.  M.  on  the  same  day.  Upon  a 
trial  of  one  of  the  indictments  the  jury  find  the  prisoner  not 
guilty.  Held :  His  acquittal  in  that  case  does  not  entitle  him 
to  be  let  to  bail  in  the  other. 

In  Hatnletfs  Case,  3  Grat.,  82,  decided  April,  1846,  it  was 
held :  A  justice  of  the  peace  has  no  general  authority  to  admit 
to  bail  after  an  examining  court  has  sent  the  prisoner  to  the 
superior  court  for  trial. 

If  the  examining  court  refuses  to  bail  or  is  silent,  a  justice  of 
the  peace  has  no  right  to  admit  a  prisoner  to  bail,  though  any 
judge  of  the  General  Court  may.  After  a  trial  before  an  ex- 
amining court,  a  justice,  in  taking  a  recognizance  of  bail,  can 
only  rightfully  act  as  the  agent  of  the  examining  court  in  execu- 
tion of  its  judgment,  and  after  it  has  judicially  decided  that  the 
prisoner  is  bailable  and  fixed  the  amount  of  bail. 

The  recognizance  of  bail  taken  by  a  justice  of  a  prisoner  sent 
on  for  trial  by  the  examining  court  must  show  on  its  face  that 
the  examining  court  had  entered  of  record  that  the  prisoner  was 
bailable,  and  had  fixed  the  amount  in  which  bail  should  be  taken. 

In  Archei^'s  Case,  6  Grat.,  705,  decided  December,  1849,  by 
the  General  Court,  it  was  held :  A  prisoner  indicted  for  felony 
will  be  let  out  on  bail  when  his  continued  confinement  will  en- 
danger his  life. 

See  Speiigler  vs.  Davy,  15  Grat.,  381,  and  Scott  <&  Boyd  vs. 
Shelor,  28  Grat.,  891  and  905,  cited  ante.  Section  2913. 

Section  3965. 

The  reference  to  2  Va.  Cases,  351,  is  an  error. 

In  Craig's  Case,  6  Kand.,  731,  decided  by  the  General  Court, 
November,  1828,  it  was  held:  If,  at  a  subsequent  term  of  a 
court,  after  the  default  of  the  principal  has  been  recorded,  the 
sureties,  on  a  rule  against  them,  can  show  to  the  satisfaction  of 
the  court  that  the  principal  was  rendered  unable  to  appear  at 
the  proper  court  by  reason  of  wounds  and  sickness,  the  court, 
in  the  exercise  of  a  sound  discretion,  may  spare  the  recog- 


Citations  to  the  Code  of  Yirginia.  1035 

nizance  and  decline  awarding  the  scL  fa.,  especially  if  the  pri- 
soner be  then  in  custody  to  answer  the  indictment. 

In  Bias  vs.  Floyd  {Governor),  7  Leigh,  640,  decided  July, 
1836.  Under  the  act  allowing  a  prisoner  to  be  bailed  to  ap- 
pear and  stand  his  trial  at  the  superior  court,  a  justice  of  the 
peace  took  a  recognizance  from  a  prisoner,  with  sureties,  con- 
ditioned for  his  appearing  to  do  what  should  be  enjoined  him 
by  the  court.  After  the  recognizance  had  been  so  taken,  words 
were  interlined  by  the  justice,  specifying  the  charge  against  the 
accused,  and  the  scire  facias  upon  the  recognizance  described 
it  as  though  the  interlined  words  had  formed  a  part  of  it  origi- 
nally. Held :  That  upon  a  rule  for  the  purpose,  the  recogniz- 
ance may  be  amended  by  striking  out  the  interpolated  matter; 
and  then,  upon  a  plea  of  no  such  record  to  the  scire  facias, 
judgment  will  be  given  for  the  defendants,  because  of  the  vari- 
ance between  the  recognizance  as  amended  and  the  recognizance 
as  described  in  the  scire  facias. 

In  Young's  Case,  1  Kob.,  744  (2d  edition,  805),  decided  by 
the  General  Court.  On  trial  of  indictment  against  W.  T.,  for 
felony  in  stealing  a  slave,  prisoner  is  acquitted ;  whereupon  the 
court  makes  the  following  order:  "It  appearing  t6  the  court 
by  the  testimony  of  witnesses  this  day  examined  on  the  trial  of 
W.  Y.  that  he  is  guilty  of  a  misdemeanor,  it  is  ordered  that  he 
be  remanded  to  jail,  and  continued  in  the  custody  of  the  jailer 
of  this  court  till  the  next  term,  to  answer  an  indictment  then  to 
be  preferred  against  him."  In  a  bill  of  exceptions  to  this  order 
filed  by  the  prisoner,  the  offence  for  which  he  was  so  remanded 
is  further  described  as  "a  misdemeanor  under  the  statute.  Sup- 
plement to  Kev.  Code,  Chapter  184,  Section  1,  p.  243."  On 
writ  of  habeas  corpus  sued  out  by  W.  Y.,  the  General  Court 
holds  the  commitment  illegal,  as  not  sufficiently  specifying  the 
offence,  and  discharges  the  prisoner  out  of  custody  under  the 
same. 

A  party  being  acquitted  of  felony,  and  thereupon  committed 
by  the  circuit  court  to  take  his  trial  for  a  misdemeanor,  this 
court  discharges  him  on  habeas  cmpus,  because  the  order  of 
commitment  does  not  sufficiently  specify  the  offence ;  but  it  ap- 
pearing from  the  record  of  the  proceedings  in  the  circuit  court 
that  there  is  reasonable  ground  to  suspect  the  party  of  having 
committed  a  violation  of  the  criminal  law  (other  than  the  spe- 
cific crime  of  which  he  was  acquitted),  proper  to  be  made  the 
subject  of  judicial  inquiry,  this  court  orders  the  sheriff  to  take 
him  again  into  custody  and  carry  him  forthwith  before  a  justice 
of  the  peace,  to  be  dealt  with  according  to  law. 

In  Gedneys  Case,  14  Grat.,  318,  decided  May  4,  1858,  it  was 
held :  In  taking  a  recognizance,  the  justice,  in  putting  the  name 
of  his  county  in  the  caption,  uses  a  contraction,  but  the  contrac- 


1036  Citations  to  the  Code  of  Virginia. 

tion  is  so  used  that  it  is  obviously  intended  for  a  county,  and 
there  is  no  difl&culty  in  ascertaining  the  county  intended.  This 
is  not  error.  Though  it  is  not  stated  in  the  body  of  the  recog- 
nizance of  what  county  the  justice  was,  yet  as  it  states  that  he 
was  a  justice  of  the  said  county,  that  refers  to  the  county  named 
in  the  caption,  and  is  sufficient. 

In  scire  facias  upon  a  recognizance,  a  substantive  and  direct 
averment  that  the  recognizance  was  transmitted  by  the  justice 
to  the  clerk  of  the  county  court  is  not  necessary.  The  recital  of 
the  recognizance,  which  purports  to  be  taken  by  a  justice  in  the 
county,  and  the  implied  averment  of  the  transmission  of  the 
recognizance  contained  in  the  2>fout  patet  per  recordum,  is  suffi- 
cient. 

The  mistake  of  the  clerk  in  stating  "  as  by  a  copy  of  the  recog- 
nizance to  our  said  county  court  transmitted,"  is  not  a  fatal  ob- 
jection to  the  scire  facias  upon  a  demurrer  thereto. 

In  CaldwelVs  Case,  14  Grat.,  698,  decided  August  26,  1858,  it 
was  held:  One  scire  facias  may  issue  against  several  cognizors 
in  one  recognizance,  but  it  must  treat  the  recognizance  as  sev- 
eral, and  the  judgment  must  be  several. 

The  recognizance  is  that  the  principal  shall  appear  before  the 
circuit  court  at  a  certain  time  to  answer  a  charge  of  felony.  At 
the  time  he  was  required  to  appear  he  was  in  the  penitentiary, 
having  been  tried,  convicted,  and  sentenced  for  another's  felony. 
Afterwards,  and  before  a  judgment  on  the  scire  facias  against  his 
bail,  his  time  under  his  sentence  expires,  and  he  is  sent  back  to 
the  jail  of  the  county  in  which  he  was  to  appear  for  trial  before 
the  circuit  court,  and  he  is  tried  and  acquitted.  The  prisoner's 
confinement  in  the  penitentiary  having  rendered  it  impossible 
for  him  to  appear  at  the  court  at  the  time  prescribed  in  the 
recognizance,  it  constitutes  a  good  defence  for  the  bail  to  the 
scire  facias. 

In  Phillips's  Case,  19  Grat.,  485,  decided  November  4,  1868, 
it  was  held:  The  act  passed  April  27, 1867,  to  revise  and  amend 
the  criminal  procedure,  provided  that  it  should  go  into  opera- 
tion on  July  1,  1867,  and  it  repeals  the  law  in  relation  to'  ex- 
amining courts.  Still,  a  prisoner  committed  on  a  charge  of  mur- 
der on  June  24,  1867,  must  be  conimitted  for  examination ;  and 
it  is  proper  to  proceed,  under  the  former  law,  in  the  examination 
of  the  prisoner  before  an  examining  court,  and  his  trial  before 
the  circuit  court. 

In  Bolanz's  Case,  24  Grat.,  31,  decided  November,  1873,  it  was 
held:  A  scire  facias  upon  a  recognizance  is  made  returnable  to 
the  term  of  the  court.  It  is  properly  placed  upon  the  docket  at 
that  term. 

Prisoner  is  indicted  for  embezzlement,  which  is  a  felony,  and 
he  is  admitted  to  bail.     The  recogniizance  is  conditioned  for  his 


Citations  to  the  Code  of  Virginia.  1037 

appearance  to  answer  an  indictment  for  embezzlement.  The 
scire  facias  upon  the  recognizance  recites  it,  that  he  was  to  ap- 
pear to  answer  to  a  certain  felony  whereof  he  stands  accused. 
This  is  not  a  variance. 

The  fact  that  after  the  recognizance  was  executed  by  his  sure- 
ties the  prisoner  was  appointed  a  deputy  United  States  mar- 
shal, and  continued  to  act  as  such  until  the  time  for  his  appear- 
ance in  court,  does  not  relieve  his  sureties  in  the  recognizance 
from  their  liability. 

Section  3966. 

In  Wormehjs  Case^  10  Grat.,  658,  decided  May  4,  1853,  it 
was  held,  page  667 :  If  the  accused  be  entitled  to  an  examining 
court,  the  commitment  shall  be  for  examination,  and  the  recog- 
nizances be  for  appearance  before  such  examining  court.  And 
if  he  be  not  so  entitled,  the  commitment  shall  be  for  trial,  and 
the  recognizances  be  for  appearance  in  the  county  or  corpora- 
tion court  at  such  time  as  the  case  can  be  proceeded  in  before 
such  court. 

Section  3967. 

In  Hopper's  Case,  6  Grat.,  684,  decided  December,  1849,  by 
the  General  Court,  it  was  held:  On  a  criminal  trial,  the  wit- 
nesses are  sworn  and  sent  out  of  the  courthouse,  so  as  not  to 
hear  the  testimony  of  the  witnesses  examined.  In  the  progress 
of  the  trial,  upon  a  question  as  to  whether  a  witness  introduced 
by  the  prisoner  is  a  white  man  or  a  mulatto,  the  Commonwealth 
offers  a  witness  Avho  has  been  present  at  the  trial.  There  is  no 
objection  to  his  being  examined. 

Section  3970. 
The  reference  to  3  Leigh,  561,  is  an  error. 
See  Young's  Case,  1  Eob.,  744,  cited  ante,  Section  3965. 
See  Spengler  vs.  Davy,  15  Grat.,  381,  and  Scott  <&  Boyd  vs. 
Shelar,  28  Grat.,  891  and  905,  cited  ante,  Section  3913. 

CHAPTEE  CXCV. 

Section  3977. 

In  Strother's  Case,  1  Va.  Cases,  186,  decided  by  ihe  General 
Court,  it  was  held :  An  appointment  under  an  act  of  congress 
to  assist  in  taking  a  census  does  not  disqualify  the  person  from 
acting  as  a  grand  juror. 

In  Cherry's  Case,  2  Va.  Cases,  20,  decided  by  the  General 
Court,  November,  1815,  it  was  held;  Where  a  bill  of  indictment 
is  found  by  a  grand  jury,  one  of  whom  is  an  alien,  or  otherwise 
disqualified  by  law,  the  bill  or  presentment  may  be  avoided  by 
plea.  ,      ^  - 

In  Long's  Case,  2  Va.  Cases,  318,  decided  by  the  General 


1038  Citations  to  the  Code  of  Vikginia. 

Court,  November,  1822,  it  was  held :  A  plea  in  abatement,  that 
one  of  the  grand  jury  is  the  owner  of  a  mill,  is  good. 

In  Wilson's  Case,  2  Leigh,  739,  decided  November,  1830.  A. 
obtains  a  license  to  keep  an  ordinary ;  A.  opens  a  tavern  under 
this  license,  and  B.  is  his  partner  in  the  business ;  but  A.  alone 
resides  at  the  tavern  and  acts  as  keeper  thereof.  Held:  B.  is 
not  the  keeper  of  an  ordinary,  disqualified  to  serve  on  grand 
juries  within  the  meaning  of  the  statute. 

In  Towles's  Case,  5  Leigh,  743,  decided  by  the  General  Court, 
July,  1835,  it  was  held :  A  naturalized  citizen  of  the  United 
States,  or  a  native  citizen  of  any  other  State  of  the  Union,  domi- 
ciled in  Virginia,  being  entitled  to  all  the  privileges  of  a  citizen 
of  this  State,  is  a  citizen,  and  qualified  as  such  to  serve  on  grand 
juries. 

In  Kerhy's  Case,  7  Leigh,  747,  decided  December,  1836,  by 
the  General  Court,  it  was  held :  A  party  in  possession  of  land 
under  a  contract  of  purchase,  having  refused  to  accept  a  con- 
veyance tendered  him,  and  instituted  a  chancery  suit  in  which 
the  question  as  to  the  sufficiency  of  the  title  is  yet  undetermined, 
is  not  a  freeholder,  qualified  to  serve  as  a  grand  juror. 

In  Morai-ts  Case,  9  Leigh,  651,  decided  by  the  General  Court, 
June,  1839.  To  indictment  in  Petersburg  Circuit  Court,  defend- 
ant pleads,  First,  That  one  of  the  grand  jury  which  found  the 
same,  was  at  the  time  he  was  summoned  and  sworn,  the  owner 
of  a  water  grist-mill  situated  in  Chesterfield;  Second,  That  one 
of  the  grand  jury  was,  at  the  time  of  finding  the  indictment,  the 
owner  of  a  water  grist-mill  (without  saying  where  the  mill  is 
situated).  On  demurrer  to  the  pleas.  Held :  Neither  of  them  is 
sufficient. 

In  Wysor's  Case,  6  Grat.,  711,  decided  December,  1849,  by 
the  General  Court,  it  was  held :  The  part,  ownership  of  a  tract 
of  land  on  which  there  is  a  mill,  which  land  has  been  allotted  to, 
and  is,  with  the  mill,  in  the  possession  of  a  widow,  as  her  dower, 
is  not  a  disquahfication  to  act  as  a  grand  juror. 

The  references  to  10  GraL,  519,  527,  are  erroneous. 

In  Ifes^ner's  Case,  26  Grat.,  976,  decided  October  9,  1875. 
On  September  18,  1874,  S.,  judge  of  the  Corporation  Court  of 
W.,  issued  kis  order  in  vacation  to  the  clerk  of  the  court,  direct- 
ing that  a  grand  jury  of  ten  citizens,  etc.,  be  summoned  to 
attend  the  court  on  September  21.  Upon  the  order  the  clerk 
issued  his  warrant  to  the  sergeant  to  summon  certain  grand 
jurors,  naming  them.  Of  the  list  furnished  the  sergeant,  nine 
attended  the  court. 

At  the  September  term  of  the  court  an  order  was  entered  as 
follows:  This  day  came  a  grand  jury,  to-wit :  naming  six  of 
those  who  had  been  summoned  by  the  sergeant,  who  being 
elected,  etc.     Held:  It  is  not  a  valid  objection  to  this  grand 


Citations  to  the  Code  of  Virginia.  1039 

jury  tliat  the  list  of  the  jurors  was  not  made  out  and  delivered 
to  the  sergeant  five  days  before  the  term. 

The  statute  does  not  require  the  order  of  court  to  be  entered 
of  record,  and  when  it  appears  by  the  record  that  six  were 
elected,  etc.,  it  must  be  presumed  that  all  this  was  done  by 
direction  of  the  court. 

The  acts  of  the  clerk,  done  in  presence  of  the  court  and  under 
its  supervision,  must  be  taken  to  be  done  by  direction  of  the 
court,  and  is  the  act  of  the  court.  All  the  statute  requires  is, 
that  the  number  of  grand  jurors  may  be  limited  to  six  by  the 
direction  of  the  court.  It  does  not  require  that  the  direction 
shall  be  matter  of  record  ;  nor  is  it  a  vahd  objection  to  the  grand 
jury  that  it  was  composed  of  six  of  the"  nine  summoned  in  va- 
cation. 

In  ITansenfluck' s  Case,  85  Va.,  702,  decided  January  31,  1889, 
it  was  held :  This  section  is  not  repugnant  to  Ai'ticles  V.  and 
XIY.  of  the  amendment  to  the  United  States  Constitution. 

Section  3979. 
In  Burton's  Case,  4  Leigh,  645,  decided  by  the  General 
Court,  December,  1832.  On  first  day  of  term  of  circuit  superior 
court  a  grand  jury  is  impaneled  and  sworn,  and  proceeds  in 
discharge  of  its  duties,  but  next  day  it  is  discovered  that  one  of 
the  grand  jurors  wants  legal  qualification,  upon  which  the  court 
discharges  him,  and  orders  another  to  be  sworn  in  his  place. 
Held  :  This  was  regular,  and  the  grand  jury  duly  constituted. 

Seciion  3984. 

In  Burgess's  Case,  2  Va.  Cases,  483,  decided  by  the  General 
Court,  June,  1825,  it  was  held :  An  indictment  fiUed  the  whole 
of  a  sheet  of  paper,  and  was  then  folded  in  another  half-sheet 
of  the  same  size,  on  which  half-sheet  the  attorney  endorsed 
''Commonwealth  vs.  Joseph  Burgess,  Indictment,^'  and  imme- 
diately below,  in  the  handwriting  of  the  grand  jury,  was  endorsed 
"a  true  bill,"  " Kobert  Hamilton,  foreman."  Although  the  said 
half-sheet  of  paper  was  blank,  except  the  endorsements,  and 
although  it  was  not  otherwise  attached  to  the  indictment  than 
being  folded  around  it,  yet  the  indictment  enveloped  by  it  must 
be  considered  as  the  indictment  on  which  the  grand  jury  passed, 
and  on  which  the  jury  found  their  verdict.  If  the  objection  were 
a  good  one  it  comes  too  late  after  verdict. 

The  caption  of  an  indictment  being,  "Virginia,  Prince  Wil- 
liam county,  to-wit,"  is  sufficient  without  its  being  entitled  as  of 
"the  superior  court  of  law  for  the  county  of  Prince  William." 

It  is  not  necessary  that  the  indictment  should  show  on  its 
face  the  date  when  it  was  found. 

In  CawoocTs  Case,  2  Va.  Cases,  527,  decided  by  the  General 


1040  Citations  to  the  Code  of  Virginia. 

Court,  June,  1826,  it  was  held :  When  a  bill  of  indictment  is 
found  by  a  grand  jury  and  endorsed  "a  true  bill"  by  the  fore- 
man, it  should  be  brought  into  court,  presented  by  the  grand 
jury,  and  then  the  finding  should  be  recorded. 

An  omission  to  record  the  finding  cannot  be  supplied  by  a 
paper  purporting  to  be  an  indictment,  with  an  endorsement,  "a 
true  bill,"  signed  by  the  person  who  was  foreman  of  the  grand 
jury  that  term ;  nor  can  it  be  supplied  by  the  recital  in  the  re- 
cord that  he  stands  indicted,  nor  by  his  arraignment,  nor  by 
his  plea  of  not  guilty.  It  cannot  be  intended  that  he  was  in- 
dicted ;  it  must  be  shown  by  the  record  of  the  finding.  The  re- 
cording of  the  finding  of  the  grand  jury  is  as  essential  as  the  re- 
cording of  the  verdict  of  the  jury. 

In  Tefffs  Case,  8  Leigh,  721,  decided  by  the  General  Court, 
June,  1837.  The  record  of  the  finding  of  on  indictment  for  re- 
tailing ardent  spirits,  without  license,  states  that  the  grand  jury 
presented  an  indictment  against  W.  T.  for  retailing  liquors.  A 
true  bill.     Held :  This  is  suflficient. 

Though  the  name  of  the  county  be  left  blank  in  the  margin 
of  an  indictment  for  misdemeanor,  it  is  enough  if  the  county  be 
stated  in  the  body  of  the  indictment. 

In  William's  Case,  5  Grat.,  702,  decided  December,  1848,  by 
the  General  Court,  it  was  held :  The  omission  by  the  grand  jury 
to  write  the  name  of  the  witness  on  whose  testimony  an  indict- 
ment is  found  at  the  foot  thereof  is  no  ground  for  quashing  the 
indictment. 

In  Price's  Case,  21  Grat.,  846,  decided  January,  1872,  it  was 
held:  P.,  having  been  indicted  in  February,  1871,  for  receiving 
a  horse,  knowing  it  to  have  been  stolen,  and  also  for  the  larceny 
of  the  horse,  elects  to  be  tried  in  the  circuit  court.  In  the  cir- 
cuit court  he,  in  September,  1871,  moves  the  court  to  send  him 
back  to  the  county  court  for  trial,  on  the  ground  that  the  cir- 
cuit court  has  no  jurisdiction  to  try  him.  The  act  of  February 
12,  1866,  which  provide^  that  horse-stealing  may  be  punished 
with  death  or  confinement  in  the  penitentiary,  at  the  discretion 
of  the  jury,  has  not  been  repealed,  and  the  circuit  court  has 
jurisdiction  to  try  the  prisoner. 

The  record  of  the  indictment  against  P.  sent  to  the  circuit 
court  shows  that  it  was  found  at  the  February  term  of  the  court 
by  a  grand  jury  of  eight  members,  but  it  does  not  show  that 
the  February  term  was  not  one  of  the  four  regular  terms  of  the 
said  court,  to  which  twenty-four  citizens  were  required  to  be 
summoned  to  constitute  a  grand  jury.  In  the  absence  of  evi- 
dence to  the  contrary,  it  must  be  presumed  that  the  indictment 
was  found  at  a  term  when  the  grand  jury  might  consist  of  only 
eight  members. 

The  record  does  not  show  that  the  indictment  was  endorsed 


CCTATIONS  TO  THE  CODE  OF  VIRGINIA.  1041 

a  "true  bill"  by  the  grand  jury,  and  signed  by  the  foreman. 
Such  endorsement,  though  usual,  is  not  necessary,  and  the  re- 
cord of  the  finding  of  the  jury  upon  the  order-book  of  the  court 
is  the  proper  evidence  of  that  fact. 

In  Richardson  s  Case,  76  Va.,  1007.  Plea  in  abatement  will 
not  lie  to  an  indictment,  for  that  the  court,  if  a  sufficient  number 
of  the  jurors  summoned  are  not  in  attendance,  causes  the  re- 
quired number  to  be  returned  from  the  county  at  large.  Nor  for 
that  two  or  more  of  the  grand  jury  which  found  the  indictment 
had  served  on  another  grand  jury  at  the  same  term.  How  they 
voted  on  the  indictment  as  members  of  the  first  grand  jury 
could  hot  properly  be  inquired  into.  Nor  for  that  the  sheriff 
or  his  deputy  were  in  the  grand  jury's  room  when  they  were  de- 
liberating and  examining  witnesses,  upon  whose  testimony  the 
indictment  was  found. 

In  Shelton's  Case,  89  Va.,  450,  decided  December  1,  1892,  it 
was  held :  Code,  Section  3984,  requiring  names  of  witnesses  to 
be  written  at  foot  of  indictment,  is  merely  directory,  and  their 
omission  is  not  fatal  to  its  validity. 

chapte;k  cxcvi. 

Section  3989. 

In  Towles's  Case,  5  Leigh,  743,  decided  by  the  General  Court, 
July,  1835,  it  was  held:  Upon  a  presentment  of  a  grand  jury 
for  an  assault  and  battery,  charging  the  offence  with  certainty, 
it  is  not  irregular  to  summon  the  defendant  to  answer  the  pre- 
sentment, and  to  try  the  case  upon  the  presentment  without 
filing  any  information. 

In  Barrett's  Case,  9  Leigh,  665,  decided  by  the  General  Court, 
December,  1839,  it  was  held :  A  felony  cannot  be  prosecuted  by 
information. 

In  Ayers's  Case,  6  Grat.,  668,  decided  June,  1849,  by  the  Gen- 
eral Court,  it  was  held :  An  indictment  being  quashed  because 
one  of  the  grand  jurors  who  found  it  was  not  a  freeholder,  the 
indictment  is  not  a  sufficient  foundation  for  a  rule  upon  the  party 
to  show  cause  why  an  information  should  not  be  filed  against 
him. 

In  Christian's  Case,  7  Grat.,  631,  decided  June,  1850,  by  the 
General  Court,  it  was  held,  pp.  635-'37 :  An  indictment  may  be 
founded  upon  a  presentment,  or  the  presentment  may  stand 
alone  under  the  statute. 

In  Bishop's  Case,  13  Grat.,  785,  decided  February  11,  1856, 
it  was  held:  A  presentment  of  a  grand  jury  to  be  a  proper 
foundation  for  an  information  must  contain  every  matter  neces- 
sary to  render  the  act  imputed  to  the  defendant  unlawful,  and 

66 


1042  Citations  to  the  Code  of  Virginia. 

the  supposed  offence  must  be  described  with  at  least  reasonable 
certainty. 

Upon  a  rule  to  show  cause  why  an  information  should  not  be 
filed,  the  defendant  appears  and  moves  the  court  to  quash  the 
presentment  on  the  ground  that  it  does  not  charge  any  offence 
against  him,  but  the  motion  is  overruled.  The  information  is 
then  filed,  and  he  pleads  "not  guilty,"  and  on  the  trial  there  is 
a  verdict  and  judgment  against  him.  Upon  a  writ  of  error  to 
the  appellate  court  he  may  object  to  the  insufficiency  of  the 
presentment. 

In  Bradshaw's  Case^  16  Grat.,  507,  decided  September  3, 1860, 
it  was  held :  In  a  prosecution  for  a  felony  or  a  misdemeanor,  if 
the  indictment  is  lost  at  any  time  before  the  trial,  though  after 
arraignment  and  plea,  the  party  cannot  be  tried. 

The  act  authorizing  a  lost  record  or  paper  to  be  substituted 
by  an  authenticated  copy  or  proof  of  its  contents  applies  only  to 
civil  cases,  and  does  not  extend  to  records  or  papers  in  criminal 
proceedings. 

In  White's  Case,  29  Grat.,  824,  decided  January  24, 1878.  An 
indictment  for  a  felony  was  endorsed  "a  true  gun,"  which  is 
signed  by  the  foreman.  The  jury  present  the  paper  in  court  as 
an  indictment,  it  is  read  to  them  by  the  clerk  and  assented  to 
as  their  indictment,  it  is  entered  on  the  record  as  an  indictment, 
and  the  prisoner  is  tried  upon  it  upon  the  plea  of  not  guilty. 
Upon  a  motion  to  arrest  the  judgment.  Held :  No  endorsement 
is  necessary  on  the  indictment  to  constitute  it  such,  and  the 
mistaken  endorsement  cannot  invalidate  it. 

Section  3990. 
In  Matthew's  Case,  18  Grat.,  989,  decided  January,  1868,  it 
was  held :  The  act  of  April  27,  1867,  to  revise  and  amend  the 
criminal  procedure.  Session  Acts  1866-'67,  p.  915,  Chapter  128, 
does  not  authorize  the  trial  of  a  prisoner  for  felony,  except  upon 
an  indictment  found  by  a  grand  jury  in  a  court  of  competent 
jurisdiction. 

.  In  Wilson's  Case,  87  Va.,  94,  decided  November  13,  1890,  it 
was  held :  Under  this  section  an  information  filed  not  upon  the 
basis  of  a  presentment,  indictment,  or  complaint  in  writing,  veri- 
fied by  the  oath  of  a  competent  witness,  is  insufficient. 

Section  3991. 

In  Saughfs  Case,  2  Va.  Cases,  3,  decided  by  the  General 
Court,  June,  1815,  it  was  held :  A  plea  in  abatement  of  an  in- 
dictment for  a  trespass,  or  misdemeanor,  alleging  that  the  pro- 
secutor is  not  a  laborer,  but  an  husbandman,  is  bad  on  de- 
murrer. 

In  Dove's  Case,  2  Va.  Cases,  29,  deci  1  by  the  General  Court, 
November,  1815,  it  was  held :  After  verdict  the  prosecutor  can- 


Citations  to  the  Code  op  Virginia.  1043 

not  be  allowed  to  show  by  parol  evidence  that  he  was  called  on 
by  the  gi-and  jury,  and  did  not  voluntarily  give  the  information. 

In  Baker's  Case,^  2  Va.  Cases,  353,  decided  by  the  General 
Court,  June,  1823,  it  was  held :  A  prosecutor  in  an  information 
for  assault  and  battery,  who  is  liable  for  the  costs,  is  a  compe- 
tent witness  for  the  Commonwealth. 

In  Wortharris  Case,  5  Band.,  669,  decided  by  the  General  Court, 
November,  1827,  it  was  held :  In  an  indictment  for  a  trespass  or 
misdemeanor,  it  is  not  necessary  to  insert  the  name  or  the  sur- 
name of  a  prosecutor  at  the  foot  of  the  indictment,  if  it  appears 
that  the  indictment  was  found  true  on  the  evidence  of  a  witness 
sent  to  the  grand  jury,  either  at  their  own  request,  or  by  direc- 
tion of  the  court,  and  this  whether  there  was  a  previous  present- 
ment or  not. 

In  Gilliam's  Case,  4  Leigh,  688,  decided  by  the  General  Court, 
July,  1834,  it  was  held :  On  an  indictment  for  an  assault  and 
battery  on  the  voluntary  information  of  the  person  assaulted, 
the  former  and  prosecutor,  being  the  only  witness  for  the  prose- 
cution, is  a  competent  witness,  though  liable  for  costs  in  case  de- 
fendant is  acquitted. 

In  HilVs  Case,  9  Leigh,  601,  decided  by  the  General  Court, 
June,  1838,  it  was  held:  The  prosecutor's  insolvency,  or  ina- 
bility to  pay  costs,  is,  ordinarily,  good  cause  for  ruling  him  to 
find  security  for  such  payment,  but  if,  in  the  opinion  of  the 
court,  public  justice  requires  that  the  prosecution  should  pro- 
ceed, it  may  refuse  to  dismiss  the  indictment,  though  the  prose- 
cutor be  insolvent,  and  security  for  costs  be  not  given.  An 
indictment  will  not  be  dismissed,  though  the  prosecutor  be  in- 
solvent, if  the  court  would  ex-offi-do  have  directed  a  prosecution 
to  have  been  instituted. 

In  Dever's  Case,  10  Leigh,  685  (2d  edition,  719),  decided  by 
the  General  Court,  December,  1840,  it  was  held :  The  omission 
to  write  the  title  or  profession  of  the  prosecutor  at  the  foot  of 
an  information  or  indictment  is  no  ground  of  exception,  either 
by  motion  to  quash  or  plea  in  abatement. 

In  Tfiornpsons  Case,  88  Va.,  45,  decided  June  18,  1891,  it  was 
held :  The  statute  does  not  require  the  name  of  prosecutor  to 
be  written  at  foot  of  indictment  for  felony,  but  only  for  misde- 
meanor. 

Section  3992. 

In  Wortham's  Case,  5  Rand.,  669,  decided  by  the  General 
Court,  November,  1827,  it  was  held  :  A  volunteer  informer  ought 
to  be  made  a  prosecutor,  and  liable  for  costs  in  case  of  failure ; 
but  one  who  is  compelled  to  be  an  informer  cannot  be  consid- 
ered a  prosecutor. 

In  Si.  Claire's  Case,  i  p&t,  556,  decided  December,  1844,  by 
the  General  Court.     In  a  prosecution  for  misdemeanor,  at  the 


1044  Citations  to  the  Code  of  Virginia. 

instance  of  a  voluntary  prosecutor,  the  defendant  files  a  plea  in 
abatement,  that  one  of  the  grand  jurors,  who  found  the  indict- 
ment, was  not  a  freeholder ;  and  the  issue  made  up  on  that  plea 
is  found  for  the  defendant,  and  the  indictment  quashed.  Held  : 
The  court  should  give  judgment  for  the  costs  against  the  prose- 
cutor. 

Section  3993. 

See  Thomas's  Case,  2  Eob.,  795,  cited  ante,  Section  3741. 

See  RoacKs  Case,  1  Grat.,  561,  cited  ante,  Section  3741. 

See  RoacKs  Case,  2  Grat.,  579,  cited  ante.  Section  3741. 

In  Pickering's  Case,  8  Grat,,  628,  decided  December,  1851,  bj 
the  General  Court,  it  was  held:  An  indictment  for  perjury  must 
show  that  the  evidence  which  the  defendant  gave  was  material. 
And  therefore,  if  the  evidence  which  the  defendant  gave  before 
the  grand  jury  is  not  shown  clearly  on  the  face  of  the  indict- 
ment to  relate  to  an  offence  committed  within  the  county,  the 
indictment  is  defective. 

In  Rhodes' s  Case,  78  Va.,  692,  decided  March  13,  1884,  it  was 
held:  As  a  general  rule,  time  of  commission  of  offence,  as 
laid  in  indictment,  is  not  material,  and  confines  not  proof  to 
time  laid ;  but  where  time  laid  is  provable  by  record,  and  in 
indictment  for  perjury,  time  must  be  truly  and  precisely  laid, 
and  failure  so  to  state  renders  indictment  demurrable.  Where 
an  indictment  is  for  swearing  contradictorily  on  two  occasions, 
prosecutor  must  elect  which  oath  he  holds  to  be  perjured,  and 
that  oath  he  must  affirmatively  prove  to  be  false.  If  defendant 
is  shown  to  have  sworn  contradictory  oaths,  without  more,  7ion 
constat,  which  is  false. 

The  matter  of  the  false  oath  must  be  material.  If  it  be  not 
material,  the  fact  that  it  is  false  will  not  sustain  the  conviction. 

R.  swore  that  M.  had  stolen  bacon,  and  offered  to  sell  it  to 
him  November  15, 1875.  Later,  R.  swore  that  M.  had  stolen  bacon 
and  offered  to  sell  it  to  him  just  before  Christmas,  December, 
1875.  On  indictment  against  R.  for  perjury,  it  was  not  proved  that 
M.  did  not  steal  bacon,  but  it  was  proved  that  R.  made  contra- 
dictory statements  as  to  the  date.  R.  was  convicted.  On  error. 
Held:  The  stealing  of  the  bacon  was  the  material  matter  of 
the  change.  The  date  of  the  ofier  to  sell  was  not  material  to  the 
offence. 

The  oath  as  to  the  date  was  not  material  as  to  the  issue,  and 
was  not  likely  to  induce  the  jury  to  give  the  readier  credit  to  the 
substantial  part  of  the  evidence. 

R.  was  not  guilty  of  perjury. 

Section  3994. 
In  DulVs  Case,  25  Grat.,  965,  decided  January,  1875,  it  was 
held:   An  indictment   for   the  larceny  of  divers  notes  of  the 


Citations  to  the  Code  of  Virginia.  1045 

^'national  currency  of  the  United  States"  is  equivalent  to  the 
phrase  in  the  statute  of  "United  States  currency,"  and  the  in- 
dictment is  sufficient. 

There  are  two  kinds  of  United  States  currency,  both  of  which 
may  be  properly  called  national  currency  of  the  United  States. 
Of  these,  one  consists  of  treasury  notes,  and  the  other  of  national 
bank-notes.  On  an  indictment  for  larceny,  the  clerk  charges 
the  jury  in  the  usual  form.  If  on  trial  it  appears  that  the 
money  charged  to  have  been  stolen  was  obtained  under  false 
pretences,  another  charge  by  the  clerk  is  not  necessary  or 
proper. 

See  Fay's  Case,  28  Grat.,  912,  cited  ante,  Section  3722. 

Section  3996. 
%Q&  Jones's  Case,  17  Grat.,  563,  and  Hughes's  Case,  17  Grat., 
565,  cited  ante,  Section  3707. 

Section  3997. 

See  Ervin  <&  Lewis's  Case,  2  Va.  Cases,  337,  cited  atite,  Sec- 
tion 3737. 

Section  3998. 

In  Lazier' s  Case,  10  Grat.,  708,  decided  July,  1853,  it  was 
held,  p.  715 :  An  indictment  for  murder  charges  the  wound  tc 
have  been  inflicted  on  the  9th  of  December,  of  which  wound  she. 
on  the  said  14th  of  December,  died.  The  word  "  said "  is  sur- 
plusage, and  its  insertion  is  not  a  fatal  defect.  In  an  in- 
dictment for  murder  it  is  not  necessary  to  set  out  the  length, 
breadth,  or  depth  of  the  wound. 

In  Sledd's  Case,  19  Grat.,  813,  decided  May  26,  1870,  it  was 
held,  p.  818 :  Since  the  statute  no  mode  of  stating  the  time  of 
an  offence  in  an  indictment  or  presentment  can  vitiate  it. 

Section  3999. 

In  McCaul's  Case,  1  Va.  Cases,  271  and  301,  decided  by  the 
General  Court,  it  was  held :  Where  the  fact  for  which  the  examin- 
ing court  remanded  the  prisoner  cannot  be  ascertained  save  by 
evidence  de  hors  the  record,  the  indictment  should  be  quashed. 

For  this  purpose  the  warrant  of  commitment  is  no  part  of  the 
record. 

In  Vance's  Case,  2  Va.  Cases,  162,  decided  June,  1819,  by 
the  General  Court,  it  was  held :  An  indictment  for  murder  need 
not  conclude  contra  formam  statuti,  although  a  punishment  va- 
riant from  the  common  law  punishment  is  prescribed  by  statute 
for  the  second  degree  of  the  offence. 

In  Jackson's  Case,  2  Va.  Cases,  501,  decided  June,  1826,  by 
the  General  Court,  it  was  held:  In  criminal  cases  defects  of 
form  in  pleading  may  be  taken -advantage  of  by  general  de- 
murrer. 


1046  Cetations  to  the  Code  of  Vieginia. 

In  Hu^man's  Case,  6  Rand.,  685,  decided  by  the  General 
Court,  November,  1828,  it  was  held:  In  a  bill  of  indictment  with 
three  counts,  if  in  the  third  count  it  is  omitted  to  be  stated  that 
the  grand  jury  "  on  their  oaths "  present  (the  first  two  counts 
being  regular  in  that  respect),  the  objection  is  obviated  by  the 
fact  that  the  record  states  that  the  grand  jury  were  sworn  in 
open  court. 

See  Kerby's  Case,  7  Leigh,  747,  cited  ante,  Section  3977. 

See  Tefft's  Case,  8  Leigh,  721,  cited  ante,  Section  3984. 

In  Kirk's  Case,  9  Leigh,  627,  decided  by  the  General  Court, 
December,  1838,  it  was  held :  The  defect  of  some  of  the  counts 
in  an  indictment  does  not  affect  the  validity  of  the  rest,  and  if 
any  count  is  good,  judgment  may  be  given  against  the  accused. 

In  Peas's  Case,  2  Grat.,  629,  decided  June,  1834,  by  the  Gen- 
eral Court,  pp.  636-'37 :  Indictment  for  feloniously  and  fraudu- 
lently taking  and  removing  a  slave  from  one  county  to  another, 
with  intent  to  defraud  the  owner  and  deprive  him  of  his  pro- 
perty. Held :  Fatally  defective  after  verdict  for  want  of  aver- 
ment, that  the  slave  was  so  taken  and  removed  mthout  the 
consent  of  the  owner. 

In  Carney's  Case,  4  Grat.,  546,  decided  December,  1847,  by 
the  General  Court,  it  was  held :  An  indictment  is  defective  for 
omitting  the  conclusion,  "  against  the  peace  and  dignity  of  the 
Commonwealth." 

In  Buzzard^ s  Case,  5  Grat.,  694,  decided  December,  1848,  by 
the  General  Court,  it  was  held :  By  mistake  a  wrong  name  is 
inserted  in  an  indictment  for  a  misdemeanor,  though  the  record 
of  the  court  and  the  endorsement  on  the  indictment  shows  the 
correct  name.  The  indictment  cannot  be  amended  by  striking 
out  the  wrong  name  and  inserting  the  name  of  the  person  in- 
tended. 

In  Clark's  Case,  6  Grat.,  675,  decided  December,  1849,  by  the 
General  Court,  it  was  held:  An  indictment  for  an  attempt  to 
commit  an  offence  ought  to  allege  some  act  done  by  the  de- 
fendant of  such  a  nature  as  to  constitute  an  attempt  to  commit 
the  offence  mentioned  in  the  indictment. 

When  an  indictment  does  not  charge  a  criminal  offence,  the 
court,  may  upon  the  motion  of  the  defendant,  quash  it. 

In  Bell's  Case,  8  Grat.,  600,  decided  December,  1851,  by  the 
General  Court,  it  was  held :  In  prosecutions  for  felonies  and 
other  serious  offences,  the  court  will  not,  on  the  motion  of  the 
prisoner,  quash  the  indictment  unless  where  the  court  has  no 
jurisdiction,  where  no  indictable  offence  is  charged,  or  where 
there  is  some  other  substantial  and  material  defect.  In  other 
cases  he  will  be  left  to  his  demurrer,  motion  in  arrest  of  judg- 
ment, or  writ  of  error. 

Where  the  indictment  in  the  caption  names  one  county,  and 


Citations  to  the  Code  op  Vibginia.  1047 

in  the  body  of  it  speaks  of  the  defendant  as  of  another  county, 
the  charging  the  oflfence  to  have  been  committed  in  the  county 
aforesaid  is  error,  it  not  being  alleged  with  sufficient  certainty 
that  the  offence  was  committed  in  the  county  in  which  the  in- 
dictment was  found. 

In  Burner's  Case,  13  Grat.,  778,  decided  February  11,  1856, 
it  was  held :  An  indictment  which  charges  that  the  defendant, 
on  a  day  and  time  specified,  kept  an  ordinary  without  obtaining 
a  license  to  do  so,  is  sufficient,  without  setting  out  the  facts  of 
his  furnishing  for  compensation  lodgings  or  diet,  etc. 

Such  an  indictment,  with  the  addition  that  he  continued  to 
keep  the  ordinary  from  the  day  stated  to  another  subsequent 
day,  the  continuando  is  mere  surplusage. 

A  person  having  a  license  to  keep  a  house  of  private  enter- 
tainment cannot  be  convicted  of  keeping  an  unlicensed  ordinary 
by  proving  the  sale  by  him  of  spirits  to  be  drunk  at  the  house 
of  private  entertainment,  the  place  of  sale,  in  addition  to  the 
furnishing  for  compensation  diet,  lodging,  and  provender  at  that 
place. 

In  Young's  Case,  15  Grat.,  664,  decided  January,  1860,  it  was 
held :  In  an  indictment  under  the  section  for  retailing  ardent 
spirits,  the  words  "not  to  be  drunk  where  sold"  not  being  in 
the  statute  need  not  be  in  the  indictment. 

In  such  indictment  the  words  "without  having  a  license  there- 
for according  to  law"  are  not  equivalent  to  the  words  "  without 
paying  such  tax  and  obtaining  such  a  certificate  as  is  prescribed 
by  the  14th  section,"  which  are  the  words  used  in  the  statute, 
and  the  indictment  is  defective. 

In  an  indictment  for  a  statutory  offence  it  is  generally  proper 
and  safest  to  describe  the  offence  in  the  words  used  by  the  statute 
for  the  purpose.  But  it  is  sufficient  to  use  in  the  indictment 
such  terms  of  description  as  that,  if  true,  the  accused  must  of 
necessity  be  guilty  of  the  offence  described  in  the  statute. 

If  the  indictment  may  be  true,  and  still  the  accused  may  be 
not  guilty  of  the  offence  described  in  the  statute,  the  indictment 
is  insufficient. 

See  Sledd's  Case,  19  Grat.,  813,  cited  anU,  Section  3998. 

In  ThompsovLS  Case,  20  Grat.,  724,  decided  November,  1870, 
it  was  held:  Every  count  in  an  indictment  must  conclude, 
"  against  the  peace  and  dignity  of  the  Commonwealth,"  or  the 
count  which  omits  it  is  fatally  defective. 

The  only  proper  endorsement  on  an  indictment  is  "a  true 
bill,"  or  "not  a  true  bill,"  with  the  name  of  the  foreman,  and 
anything  else  is  not  a  part  of  the  finding  of  the  grand  jury. 

The  record  of  the  finding  of  the  grand  jury  saying,  "  in  com- 
mission of  rape,"  which  was  on  the  indictment,  is  mere  sur- 
plusage. 


1048  Citations  to  the  Code  op  Virginia. 

See  RandalVs  Case,  24  Grat.,  644,  cited  ante,  Section  3671. 

In  Heif rick's  Case,  29  Grat.,  844,  decided  Febiniaiy  7, 1878,  it 
was  held :  If  an  indictment  for  a  statutory  oflence,  by  following 
the  language  of  the  statute,  charges  expressly  or  by  necessary 
implication  every  fact  necessary  to  constitute  the  offence,  it  is 
sufficient. 

In  RdbinsoiibS  Case,  32  Grat.,  866,  decided  January,  1879,  it 
was  held:  An  indictment  charging  the  prisoner  with  stealing 
certain  papers  of  the  value  of  one  hundred  and  ten  dollars,  not 
otherwise  describing  the  papers  charged  to  have  been  stolen,  is 
fatally  defective. 

In  Bacdgalupd s  Case,  33  Grat.,  807,  decided  January,  1880. 
In  such  a  case  an  indictment  which  has  been  made  by  the 
grand  jury  of  the  Hustings  Court  of  the  city  of  Richmond 
charges  the  assault  to  have  been  made  at  the  said  city,  and 
within  the  jurisdiction  of  the  said  Hustings  Court  of  the  city  of 
Richmond.  Held :  This  is  sufficient,  and  it  is  not  necessary  to 
state  the  place  in  the  city  where  the  assault  was  made. 

See  Hawley's  Case,  75  Va.,  847,  cited  ante.  Section  3885. 

In  Hendricks's  Case,  75  Ya.,  934,  decided  March,  1882,  it  was 
held :  A  demurrer  to  an  indictment  containing  two  counts,  be- 
ing general  and  not  to  each  count  thereof,  if  either  is  good,  it  is 
properly  overruled;  and  the  verdict,  being  general,  if  support- 
ed by  either  count,  must  stand. 

In  Boyd's  Case,  11  Va.,  52,  decided  January  25,  1883.  An 
indictment  under  a  statute  must  state  all  the  circumstances 
which  constitute  the  offence  as  defined  in  the  statute.  Though 
the  offence,  at  common  law  or  by  statute,  is  defined  in  general 
terms,  yet  the  indictment  must  charge  it  specifically,  and  must 
descend  to  particulars. 

In  an  indictment  for  corrupt  misbehavior  in  office,  the  act 
must  be  distinctly  charged  as  done  knowingly  and  with  corrupt 
motives. 

B.,  an  election  official,  is  indicted  under  the  Code  for  acting 
unlawfully  as  such  official.  On  motion  to  quash,  held :  Though 
he  may  have  acted  unlawfully,  it  does  not  follow  that  he  was 
guilty  of  corrupt  conduct,  for  the  punishment  whereof  the  stat- 
ute was  intended,  and  the  indictment  is  insufficient. 

In  Bailey's  Case,  78  Va.,  19,  decided  November  15,  1883,  it 
was  held :  In  describing  an  offence  under  a  statute  the  indict- 
ment must  follow  the  statute,  and  any  material  variance  will  be 
fatal.  In  criminal  procedure,  an  essential  of  the  offence  therein 
described  is  the  scienter.  Failure  of  the  indictment  to  aver  the 
scienter  is  fatal. 

See  Rhodes's  Case,  18  Va.,  692,  cited  ajite.  Section  3993. 

In  Webster's  Case,  80  Va.,  598,  decided  June  25,  1885,  it  was 
held:  An  indictment  charging  that  the  prisoner  on,  etc.,  a  cer- 


Citations  to  the  Code  of  Virginia.  1049 

tain  mill-house,  not  adjoining  to,  nor  occupied  with,  the  dwell- 
ing-house, of  F.,  etc.,  sufficiently  alleges  the  ownership  of  the 
mill-house  to  be  in  F.,  and  is  sufficient  in  law. 

In  Sprouse's  Case,  81  Va.,  374,  decided  January  21,  1886,  it 
was  held :  The  joining  of  two  or  more  offences  in  one  count  is 
not  permitted.  But  if  the  whole  transaction  be  only  parts  of 
one  fact  of  endeavor,  all  the  parts  may  be  stated  together  as 
one  oftence ;  e.  g.,  a  man  may  be  indicted  for  the  battery  of  two 
or  more  persons  in  the  same  count,  etc. ;  and  so  an  indictment 
charging  in  one  count  the  forgery  of  a  check  and  of  the  endorse- 
ment thereof  is  not  hable  to  the  objection  of  duplicity  or  mis- 
joinder. 

In  Shelton's  Case,  89  Va.,  450,  decided  December  8,  1892,  it 
was  held :  An  indictment  is  sufficiently  certain  as  to  the  time 
when  it  alleges  that  an  offence  was  committed  on  a  certain  day, 
about  the  hour  of  12  o'clock  in  the  night  of  that  day,  and  means 
in  the  night  after  the  sundown  of  that  day. 

Section  4000. 

In  Taylor's  Case,  2  Va.  Cases,  94,  decided  by  the  General 
Court,  November,  1817,  it  was  held:  The  omission  to  charge 
that  the  offence  was  committed  "within  the  jurisdiction  of  the 
court,"  the  county  itself  being  named,  is  cured  by  the  verdict. 
The  caption  of  the  indictment  setting  forth  the  county  is  suffi- 
cient, without  entitling  it  of  the  superior  court. 

In  Barker's  Case,  2  Va.  Cases,  122,  decided  November,  1817, 
by  the  General  Court,  it  was  held :  In  an  indictment  for  steal- 
ing bank-notes  it  should  be  charged  that  they  were  feloniously 
stolen,  although  by  the  act  it  is  not  denominated  a  felony ;  and 
this  error  is  not  cured  by  the  statute  of  jeofails. 

If  the  indictment  for  stealing  bank-notes  does  not  charge  that 
they  are  the  bank-notes  and  beloDg  to  some  person  or  persons 
by  name,  or  of,  or  to,  some  person,  to  the  jury  unknown,  the 
defect  is  fatal,  and  not  cured  by  the  statute  of  jeofails. 

See  Trimhle's  Case,  2  Va.  Cases,  143,  cited  ante^  Section  3671. 

In  the  case  of  Commonwealth  vs.  Ervin  &  Lewis,  2  Va.  Cases, 
337,  decided  by  the  General  Court,  Juue,  1823,  it  was  held,  p. 
340-'41 :  In  an  indictment  for  the  forgery  of  bank-notes,  instead 
of  setting  out  the  tenor  of  the  forged  notes,  the  attorney,  for 
the  greater  certainty  as  to  their  identity,  referred  to  them  as 
"being  annexed"  hereto,  and  actually  did  annex  them.  The 
prisoner  did  not  move  to  quash  the  indictment,  nor  did  he 
plead  in  abatement,  but  pleaded  the  general  issue,  and  a  ver- 
dict was  rendered  against  him.  Although  this  is  a  careless  and 
irregular  mode  of  counting,  yet,  after  verdict,  the  irregularity  is 
<;ured  by  the  statute  of  jeofails. 

A  charge  that  a  forgery  of  baDk-notes  was  committed  with 


1050  Citations  to  the  Code  of  Virginia. 

intent  to  injure  "divers  good  citizens  of  the  Commouwealtlr 
and  others"  to  the  jurors  unknown,  without  setting  out  an  in- 
tent to  injure  the  president,  directors,  and  company  of  those 
banks,  or  of  any  particular  person,  or  body  politic  by  name,  is 
good  after  verdict. 

So  to  charge  that  the  prisoners  willingly  acted  and  assisted 
in  false  making  and  forging,  without  setting  out  in  particular 
any  person  who  was  assisted ;  so  to  charge  them  with  causing 
and  procuring  the  forged  notes  to  be  passed,  without  setting  out 
the  persons  whom  the  prisoners  caused  or  procured  to  pass  them, 
nor  to  whom ;  so  to  charge  them  with  passing  them  to  W.  S., 
with  intent  to  defraud  the  said  W.  S.  and  others;  so,  also,  to 
charge  them  with  causing  them  to  be  passed  or  exchanged. 

In  Jacobs' s  Case,  2  Leigh,  709,  decided  June,  1830.  In  an 
indictment  against  justices  of  the  county  court  for  misbehavior 
in  office,  it  is  necessary  that  the  act  imputed  as  misbehavior  be 
distinctly  and  substantially  charged  to  have  been  done  with 
corrupt,  partial,  malicious  or  improper  motives,  and,  above  all, 
with  knowledge  that  it  was  wrong,  though  there  are  no  technical 
words  indispensably  required  in  which  the  charge  of  corruption, 
partiality,  etc.,  shall  be  made. 

An  indictment  in  such  case,  not  charging  the  corruption,  par- 
tiality, etc.,  distinctly  and  substantially  and  not  charging  the 
scienter.  Held :  Naught  after  verdict  of  conviction,  its  defects 
not  being  cured  by  the  statute. 

In  IsreaVs  Case,  4  Leigh,  675,  decided  by  the  General  Court, 
December,  1838.  Indictment  at  common  law  charging  defendant 
with  rescuing  property  that  had  been  distrained  by  a  sheriff  for 
public  dues  from  a  bailee  to  whose  safe-keeping  the  sheriff  had 
committed  it,  without  charging  that  the  defendant  knew  in  what 
right  the  bailee  held  it.  Held:  Indictment  defective  for  not 
averring  that  the  defendant  had  such  knowledge. 

And  this  defect  is  not  cured  by  verdict,  by  the  statute  of 
jeofails  in  criminal  cases. 

In  Stephen's  Case,  4  Leigh,  679,  decided  by  the  General 
Court,  December,  1833,  it  was  held :  Motion  in  arrest  of  judg- 
ment because  several  of  the  petty  jury  were  not  freeholders ; 
this  being  matter  of  fact  not  appearing  in  the  record,  is  not  a 
good  reason  for  arresting  judgment. 

In  Jones  s  Case,  2  Grat.,  555,  decided  June,  1845,  it  was  held, 
by  the  General  Court :  In  the  case  of  a  misdemeanor  after  the 
verdict  of  not  guilty,  and  a  trial  and  verdict  upon  that  plea,  it 
is  not  competent  to  arrest  the  judgment  for  any  supposed  vari- 
ance between  the  information  and  presentment.  A  defendant 
may  avail  himself  of  such  variance  by  showing  it  as  a  cause- 
against  the  filing  of  the  information  or  by  motion  to  quash  it. 

See  Peass  Case,  2  Grat.,  629  and  637,  cited  ante.  Section  3999. 


Citations  to  the  Code  of  Virginia..  1051 

In  OWs  Case,  18  Grat.,  915,  decided  October,  1867,  it  was 
held :  When  the  presentment  does  not  charge  the  oflfence,  th& 
appellate  court  will  reverse  the  judgment  against  the  accused, 
though  no  motion  in  arrest  of  judgment  was  made  in  the  court 
below.  Where  a  pecuniary  judgment  has  been  rendered  against 
a  defendant  in  a  criminal  case  and  he  pays  it,  and  upon  appeal 
the  judgment  is  reversed,  the  cause  will  be  remanded  to  the 
court  below  for  an  order  of  restitution  to  be  made  therein  if  the 
money  is  yet  in  the  hands  or  power  of  the  court. 

In  Matthews's  Case,  18  Grat.,  989,  decided  January,  1868,  it 
was  held :  Anything  which  is  good  cause  for  arresting  a  judg- 
ment is  good  cause  for  reversing  it,  though  no  motion  in  arrest 
is  made. 

In  Cousins' s  Case,  19  Grat.,  807,  decided  April  29, 1870,  it  was 
held:  An  information  under  the  act  in  relation  to  the  assess- 
ment of  taxes  on  licenses,  must  allege  that  the  sale  was  "for 
profit  or  on  commission,  or  for  other  compensation,"  or  it  will  be 
fatally  defective  on  demurrer,  or  on  motion  in  arrest  of  judgment. 

In  RandalVs  Case,  24  Grat.,  644,  decided  January,  1874,  it 
was  held:  The  indictment  and  verdict  being  fatally  defective, 
the  judgment  may  be  reversed  by  the  appellate  court,  though  no 
motion  in  arrest  of  judgment  was  made  in  the  court  below. 

In  Puryear's  Case,  11  Va.  Lq,w  Journal,  532,  decided  March 
24,  1887,  it  was  held :  A  case  in  which  the  indictment  charges 
the  offence  with  sufiicient  certainty  for  judgment  to  be  given 
thereon  according  to  the  very  right  of  the  case,  and  a  motion  in 
arrest  of  judgment,  was  properly  overruled. 

Section  4001. 

In  Lovett's  Case,  2  Va.  Cases,  74,  decided  June,  1817,  by  the 
General  Court,  it  was  held :  A  special  session  of  the  superior 
court  of  law  held  for  the  trial  of  offences  is  not  the  third  term 
within  the  meaning  of  the  act,  but  a  substitute  for  it,  and  there- 
fore, when  there  is  a  failure  to  hold  two  irregular  terms,  and 
then  a  special  term  was  held,  at  which  the  prisoner  was  not 
tried,  but  being  indicted  at  the  regular  term  succeeding  the 
special  term,  he  ought  not  to  be  discharged  for  the  crime,  but 
may  be  tried. 

In  the  case  Ex  parte  Joseph  Santee,  2  Va.  Cases,  363,  de- 
cided by  the  General  Court,  November,  1823,  it  was  held :  The 
word  "term"  ought  to  be  construed  to  mean  not  the  stated  time 
when  a  court  should  meet,  but  the  actual  session  of  the  court. 

In  BelVs  Case,  8  Grat.,  600,  decided  December,  1851,  by  the 
General  Court,  it  was  held:  A  prisoner  being  sent  on  for  further 
trial  by  an  examining  court  which  sat  during  the  session  of  the 
circuit  court  to  which  he  is  sent  for  further  trial,  that  term  of 
the  circuit  court  is  not  one  of  the  two  at  which  the  statute  di- 


1052  Citations  to  the  Code  of  Virginia. 

rects  that  he  shall  be  indicted,  or  that  he  shall  be  discharged 
from  imprisonment. 

In  Adock's  Case,  8  Grat.,  661,  decided  December,  1851,  by 
the  General  Court.  A  prisoner  is  indicted  for  embezzling  the 
goods  of  W.,  and  at  the  fifth  term  after  he  was  examined  for  the 
offence  he  is  tried  and  convicted,  but  the  verdict  is  set  aside  for 
a  variance  between  the  allegation  and  the  proof  as  to  the  owner- 
ship of  the  goods,  and  the  case  is  continued.  At  the  next  term 
of  the  court  the  attorney  for  the  Commonwealth  enters  a  nolle 
jprosequi  upon  the  indictment,  and  the  prisoner  is  indicted  again 
for  the  same  offence,  the  indictment  being  in  the  first  count  as 
in  the  former  indictment,  and  another  count  charging  the  goods 
embezzled  to  be  the  goods  of  A.  Upon  his  arraignment,  he 
moves  the  court  to  discharge  him  from  the  offence  on  the  ground 
that  three  regular  terms  of  the  court  had  been  held  since  he  was 
examined  and  remanded  for  trial  without  his  being  indicted. 
The  attorney  for  the  Commonwealth  opposes  the  motion  and 
offers  the  record  of  the  proceedings  of  the  circuit  court  upon 
the  first  indictment  to  show  that  he  had  been  indicted,  tried  and 
convicted,  which  was  objected  to  by  the  prisoner.  Held :  The 
record  is  competent,  and  the  only  competent  evidence  upon  the 
question. 

The  second  indictment  being  for  the  same  act  of  embezzling 
as  the  first,  and  the  prisoner  having  been  indicted,  tried  and 
convicted  in  time,  and  the  verdict  set  aside  for  the  variance,  the 
second  indictment  was  proper  and  in  time,  and  the  prisoner  is 
not  entitled  to  be  discharged. 

The  exceptions  or  excuses  for  failure  to  try  the  prisoner,  enu- 
merated in  the  statute,  are  not  intended  to  exclude  others  of  a 
similar  nature,  or  in  pain,  ratione,  but  only  that  if  the  Common- 
wealth was  in  default  for  three  terms  without  any  of  the  excuses 
for  the  failure  enumerated  in  the  statute,  or  such  like  excuses 
fairly  implicable  by  the  courts  from  the  reason  and  spirit  of  the 
law,  the  prisoner  should  be  entitled  to  his  discharge. 

In  Jones's  Case,  19  Grat.,  478,  decided  October  17,  1868.  In 
September,  1867,  J.  is  committed  to  be  tried  for  a  felony  at  the 
October  term  of  the  county  court,  and  at  that  term  of  the  court 
an  information  is  filed  against  him,  and  he  elects  to  be  tried  in 
the  circuit  court  and  is  remanded  for  trial  in  that  court.  He 
remains  in  jail  until  the  April  term  of  the  court,  1868,  no  indict- 
ment having  been  found  against  him.  The  grand  jury  terms  of 
the  county  court  are  November  and  June.  At  the  April  term  of 
the  circuit  court,  after  the  grand  jury  has  been  discharged,  he 
applies  for  a  writ  of  Tidbeas  corpus  to  obtain  his  discharge.  Held : 
Having  been  committed  for  trial  in  the  county  court,  that  is  the 
court  in  which  he  is  held  to  answer,  in  the  sense  of  the  statute, 


Citations  to  the  Code  op  Virginia.  1053 

though  he  had  been  remanded  for  trial  in  the  circuit  court,  and 
he  should  be  indicted  in  the  county  court. 

The  second  term  of  the  court  spoken  of  in  the  statute  is  the 
second  term  at  which  a  grand  jury  is  directed  to  be  summoned. 
If  it  was  so  that  the  prisoner  was  held  to  answer  in  the  circuit 
court,  that  would  not  be  till  he  was  remanded  to  that  court; 
and,  therefore,  though  the  prisoner  was  committed  for  trial  in 
the  county  court  before  the  September  term  of  the  circuit  court, 
that  could  not  be  one  of  the  two  terms  spoken  of  by  the  statute. 
And  if  the  November  term  in  the  county  court  could  be  con- 
nected with  the  April  term  in  the  circuit  court,  still,  though  the 
grand  jury  at  the  April  term  had  been  discharged  before  the  ap- 
plication for  the  wTit,  the  judge  might  have  ordered  another 
grand  jury  to  be  summoned  during  the  term,  and,  therefore,  the 
term  could  not  be  counted  as  one  of  the  terms  until  it  was  ended. 

The  filing  of  the  information  being  unauthorized  in  the  case 
of  a  felony,  is  of  no  avail,  and  an  indictment  must  be  found  within 
the  time  prescribed  by  statute. 

In  IlalVs  Case,  78  Va.,  678,  decided  March  13, 1884.  H.  was 
examined  before  a  justice  for  felony.  May  9,  1883,  and  was  re- 
manded for  trial  in  the  Hustings  Court  of  D.  The  court  held 
terms  May  10  and  June  4,  1883,  at  both  of  which  grand  juries 
were  impaneled ;  but  H.  was  indicted  for  said  felony  not  until 
October,  1883.  Failure  to  indict  did  not  arise  from  any  of  the 
causes  excepted  in  the  statute.  To  the  indictment  H,  filed  a 
special  plea  in  bar,  which  was  rejected.  On  error,  held :  The 
plea  is  good,  and  H.  is  entitled  to  be  discharged  from  imprison- 
ment. 

In  Waller  &  Boggs's  Case,  84  Va.,  492,  decided  February  9, 
1888,  it  was  held :  Under  this  section,  it  suffices  that  any  indict- 
ment be  found  against  the  accused  before  the  end  of  the  second 
term  at  which  he  is  held  to  answer,  though  he  be  actually  tried 
upon  an  indictment  found  after  that  time. 

Section  4003. 

In  Goode's  Case,  2  Va.  Cases,  200,  decided  June,  1820,  it  was 
held :  If  a  defendant  be  presented  for  a  misdemeanor,  and  sum- 
moned to  show  cause  why  an  information  should  not  be  filed, 
and,  upon  the  return  of  that  summons  executed,  the  defendant 
fails  to  appear,  and  the  rule  be  made  absolute  and  the  informa- 
tion be  filed,  the  court  cannot  proceed  to  try  it,  but  the  defend- 
ant must  be  summoned  to  answer  the  information ;  or,  if  he  be 
charged  with  an  offence  to  which  an  infamous  or  corporal  pun- 
ishment is  affixed,  or  may  ensue,  the  court  may  award  a  capias 
instead  of  a  summons. 

In  WorcPs  Case,  3  Leigh,  743,  decided  November,  1827,  by 
the  General  Court.     Upon  presentment  for  unlawful  gammg  at 


1054  Citations  to  the  Code  of  Virginia. 

<}ards  at  a  particular  place,  within  six  mouths  next  preceding, 
process  is  issued  summoning  the  defendant  to  answer  a  pre- 
sentment for  unlawful  gaming  at  cards,  generally  without  speci- 
fying time  or  place.  Held :  Such  process  is  good  and  suffi- 
cient. 

See  Towles's  Case,  5  Leigh,  743,  cited  ante^  Section  3989. 

In  Wright's  Case,  19  Grat.,  626,  decided  January  24,  1870, 
hj  the  military  court  of  appeals,  it  was  held:  A  prisoner  is 
indicted  for  felony  in  the  circuit  court,  he  being  in  custody  at 
the  time.  The  circuit  court  has  no  jurisdiction  to  try  him  on 
this  indictment,  but  he  must  be  sent  before  a  justice  for  exami- 
nation, and  committed  for  trial  in  the  county  court. 

In  Shelly's  Case,  19  Grat.,  653,  decided  February  16, 1870,  by 
the  military  court  of  appeals,  it  was  held:  A  prisoner  in  cus- 
tody is  indicted  in  the  Hustings  Court  of  L.,  held  by  a  judge. 
He  is  not  entitled  to  be  sent  before  a  justice  for  examination; 
but  the  court  may  proceed  to  try  him  on  the  indictment. 

In  ChahoovbS  Case,  20  Grat.,  733  and  758,  decided  January,  1871, 
it  was  held :  C.  is  indicted  for  felony  in  the  Corporation  Court  of 
K.,  the  proper  court  to  try  him  for  the  offence.  When  indicted 
he  is  not  in  custody,  and  has  been  arrested  or  examined  by 
the  justice.  Qucere :  If  he  should  be  arrested  and  sent  before 
a  justice  to  be  examined,  or  whether  he  may  be  taken  on  a 
capias  and  tried  upon  the  indictment  without  any  examination 
by  a  justice  ? 

In  Jackson's  Case,  23  Grat.,  919,  decided  January,  1873.  A 
jury  of  inquest  find  that  the  deceased  was  killed  by  J.,  and  the 
justice,  who  acted  as  coroner,  issues  process,  upon  which  J.  is 
committed  to  prison.  The  grand  jury  in  the  county  court  find 
a,n  indictment  against  J.  for  murder,  and  he  is  brought  into 
court  and  arraigned,  and  on  his  arraignment  elects  to  be  tried 
in  the  circuit  court.  In  the  circuit  court  J.  moves  to  quash  the 
indictment  because  he  had  not  been  sent  before  a  justice  for 
examination;  and  that  motion  being  overruled,  and  the  cause 
continued  to  the  next  term  on  his  motion,  he  at  the  next  term 
files  a  plea  in  abatement  to  the  indictment,  on  the  ground  that 
he  had  not  had  the  benefit  of  an  examination  before  a  justice 
of  the  peace  or  other  legally  authorized  officer  for  commitment. 
To  this  plea  the  attorney  for  the  Commonwealth  demurs,  and 
the  demurrer  is  sustained.  Held:  J.  was  not  entitled  to  be 
sent  before  a  justice  for  examination. 

In  Stuart's  Case,  28  Grat.,  950,  decided  July  26,  1877,  it  was 
held:  Where  a  prisoner  is  arrested  under  a  warrant  of  a  justice, 
examined,  and  committed  to  jail,  and  indicted  and  tried,  and 
afterwards  that  indictment  quashed,  and  a  new  indictment  found 
against  him  for  the  same  offence,  he  is  not  then  entitled  to  a 
new  preliminary  examination  before  a  justice  under  the  last  in- 
dictment found  against  him. 


Citations  to  the  Code  of  Virginia.  1065 

The  reference  to  81  Va.,  159,  is  an  error. 

In  Jones's  Case,  86  Ya.,  661,  decided  March  13,  1890,  it  was 
held :  Bj  the  law  in  force  before  May  1,  1888,  accused,  when 
indicted,  was  required  to  be  sent  before  a  justice  for  examina- 
tion. By  this  section  that  requirement  is  omitted,  and  accused 
indicted  since  then  need  not  have  such  preHminary  examination, 
though  the  offence  was  committed  before  then. 

Section  4009. 
In  WebVs  Case,  2  Leigh,  721,  decided  June,  1830,  it  was  held: 
Upon  a  presentment  in  the  circuit  court  for  an  offence  for  which 
the  penalty  prescribed  by  law  exceeds  not  twenty  dollars,  the 
court  cannot  proceed  by  way  of  information,  but  only  in  a  sum- 
mary manner  under  the  statute. 

Section  4010. 
See  Maddox's  Case,  2  Va.  Cases,  19,  cited  ante^  Section  3816. 

Section  4011. 
In  AdMnso7i8  Case,  2  Va.  Cases,  513,  decided  by  the  General 
Court,  June,  1826,  it  was  held :  A  misnomer  cannot  be  pleaded 
to  a  presentment,  indictment,  or  information  for  unlawful  gam- 
ing under  our  laws. 

Section  4012. 
In  Shiffletfs  Case,  18  Southeastern  Keport,  838,  decided  Jan- 
uary 11,  1894.  Code,  this  section,  declares  that  in  prosecution 
for  misdemeanors  not  embraced  by  Section  4010,  after  a  sum- 
mons has  been  executed  ten  days  before  the  first  day  of  the 
term,  the  court  may  award  a  capias  or  proceed  to  trial  in  the 
same  manner  as  if  the  accused  had  appeared.  Held :  That  it 
was  proper  to  try  defendants  for  a  misdemeanor  in  their  absence 
without  first  awarding  a  capias  for  their  arrest  when  they  had 
been  duly  summoned. 

Section  4013. 

In  HilVs  Case,  2  Va.  Cases,  61,  decided  by  the  General  Court, 
June,  1817,  it  was  held :  The  omission  to  continue  a  cause  in 
which  there  was  a  verdict,  on  the  records  of  the  county  court 
for  two  quarterly  terms,  is  no  discontinuance  of  the  prosecution. 

The  reference  to  2  Va.  Cases,  240,  is  an  error. 

In  the  case  referred  to,  21  Grat.,  780,  the  statute  is  followed, 
not  construed. 

In  Bolanz's  Case,  24  Grat.,  31,  decided  November,  1873,  it 
was  held :  Prisoner  charged  with  a  felony  in  the  county  court 
appears  at  the  August  term,  and  on  his  motion  his  case  is  con- 
tinued until  the  first  day  of  the  October  term,  passing  over  the 
September  term.     This  is  not  error. 


1056  Citations  to  the  Code  of  Virginia. 

In  Harrisons  Case,  81  Ya.,  491,  decided  March  11,  1886,  it 
was  held :  A  case  stands  continued  without  any  order,  and  fail- 
ure to  enter  order  of  continuance  works  no  discontinuance. 

Section  4014. 
The  cases  cited  from  2  Va.  Cases  are  in  construction  of  the 
common  law  now  abolished. 

CHAPTEE  CXCVII. 

Section  4016. 

In  'Whitehead's  Case,  19  Grat.,  640,  decided  January  24, 1870, 
by  the  military  court  of  appeals,  it  was  held :  The  arraignment 
of  a  prisoner  and  his  plea  are  distinct  parts  of  the  proceeding ; 
and,  therefore,  upon  his  arraignment,  and  without  pleading,  he 
may  elect  to  be  tried  in  the  circuit  court. 

Two  prisoners  may  be  arraigned  together.  This  does  not  pre- 
vent their  j)leading  separately  and  electing  to  be  tried  sepa- 
rately. 

In  Jackson's  Case,  19  Grat.,  656,  decided  February  16,  1870, 
by  the  military  court  of  appeals,  it  was  held :  Upon  a  trial  for 
felony  it  is  the  right  of  the  prisoner,  a  right  which  he  cannot 
waive,  to  be  present  from  the  arraignment  to  the  verdict.  And 
if  the  evidence  of  a  witness  on  a  trial,  which  has  been  reduced 
to  writing,  or  any  part  of  it  is  read  to  the  jury  in  the  absence 
of  the  prisoner,  it  is  error,  for  which  the  verdict  will  be  set 
aside. 

See  ChahooviS  Case,  20  Grat.,  733,  cited  ante,  4003. 

In  BoswelVs  Case,  20  Grat.,  860,  decided  March,  1871,  it  was 
held :  A  prisoner  indicted  in  a  corporation  court  for  murder,  is 
not  entitled  to  elect  to  be  tried  in  the  circuit  court. 

In  Bolanz's  Case,  24  Grat.,  31,  decided  November,  1873,  it 
was  held :  Prisoner  charged  with  a  felony  in  the  county  court 
appears  at  the  August  term,  and,  on  his  motion,  his  case  is  con- 
tinued until  the  first  day  of  the  October  term,  passing  over  the 
September  term.     This  is  not  error. 

In  Joyce's  Case,  78  Va.,  287,  decided  January  17, 1884.  Upon 
application  for  change  of  venue,  on  ground  that  an  impartial 
jury  cannot  be  had  in  that  county  or  brought  thereto  from  an- 
other county  or  corporation,  application  is  refused,  and  a  jury 
obtained  in  the  county.  Held  :  Prisoner  should  first  have  asked 
for  a  jury  from  another  county.  Not  having  done  so,  and  an, 
impartial  jury  having  in  fact  been  obtained,  the  conclusive  pre- 
sumption is  that  the  application  for  change  of  venue  was  un- 
founded. Prisoner  may  move  for  continuance  before  arraign- 
ment, but  afl&davits  of  prevalence  of  bitter  and  general  prejudice 
against  him,  do  not  of  themselves  constitute  good  grounds  for  a 
continuance. 


Citations  to  the  Code  of  Virginta.  1057 

In  Anderson's  Case,  84  Va.,  77,  decided  November  17,  1887. 
The  county  court  wherein  accused  was  indicted  for  a  capital 
felony  refused  to  consider,  till  after  his  arraignment,  motion  for 
continuance,  on  ground  of  absence  of  material,  duly-summoned 
witness,  and  thereupon  accused  elected  to  be  tried  in  the  circuit 
court.  Held :  Such  refusal  deprived  the  accused  of  his  right  of 
free  election  of  forum,  and  was  error. 

In  Stoneham's  Case,  86  Va.,  523,  decided  November  14,  1889, 
it  was  held  :  A  person  charged  with  a  felony  that  may  be  pun- 
ished with  death,  may,  when  called  to  the  bar  to  answer  the  in- 
dictment, elect  to  be  tried  in  the  circuit  court,  and  when  the  re- 
cord shows  this,  it  is  not  error  for  the  circuit  court  to  refuse  to 
remand  the  case  to  the  county  court  for  trial. 

In  HowelVs  Case,  86  Va.,  817,  decided  April  10,  1890,  it  was 
held :  Prisoner  indicted  for  murder,  on  arraignment  elected  to 
be  tried  in  circuit  court,  and  was  produced  therein,  but  the  re- 
cord had  not  been  certified,  and  he  moved  to  be  remanded  to 
the  county  court  for  trial.  The  circuit  court  examined  the  un- 
certified record  before  it  held  there  was  error  apparent  therein, 
in  that  the  county  court  had  refused  to  hear  prisoner's  motion 
for  a  continuance  before  his  arraignment,  and  remanded  the 
case.  'When  afterwards  prisoner  objected  to  trial  in  the  county 
court  because  he  had,  upon  his  arraignment,  elected  to  be  tried 
in  the  circuit  court,  but  his  objection  being  overruled,  the  trial 
proceeded.  Held :  After  election  to  be  tried  in  circuit  court,  it 
alone  had  jurisdiction  to  try  him,  but  it  could  not  do  so  without 
a  certified  record  of  the  case,  but  it  had  no  jurisdiction  to  cor- 
rect errors  of  court  below.  And  so,  prisoner  has  not  been  law- 
fully tried. 

In  Early's  Case,  86  Va.,  921,  decided  June  19,  1890,  it  was 
held :  Where  prisoner  on  arraignment,  informed  of  his  right  to 
trial  in  circuit  court,  pleads  "  not  guilty,"  and  elects  to  be  tried 
in  county  court,  and  counsel  appointed  to  defend  were  sufferers 
by  the  offence  charged,  but  appear  to  have  been  faithful  and 
obtained  continuance  to  prepare  for  trial,  and  at  next  term 
prisoner  moves  that  another  plea  be  substituted,  and  his  elec- 
tion to  be  tried  in  the  county  court  be  withdrawn,  the  motion  is 
overruled.     Held :  No  error. 

In  MitchelVs  Case,  89  Va.,  826,  decided  March  30, 1893.  Where 
on  trial  for  a  capital  offence,  accused  elected  to  be  tried  in  cir- 
cuit court,  the  clerk  of  the  county  court  failed  to  certify  the  copy 
of  the  record  transmitted  to  the  circuit  court.  Held:  The  cir- 
cuit court  acquired  no  jurisdiction  of  the  case,  and  a  judgment 
rendered  therein  was  void. 

In  Brier's  Case,  89  Va.,  529,  decided  January  12, 1893,  it  was 
held :  This  section,  providing  that  a  defendant  upon  arraignment 
in  the  county  court  for  a  felony,  may  demand  to  be  tried  in  the 
67 


1058  Citations  to  the  Code  of  Virginia. 

circuit  court,  does  not  warrant  the  inference  that  it  is  the  duty 
of  the  court  or  clerk  to  inform  him  of  his  right  to  be  tried  in  the 
latter  court. 

In  BentonHs  Case,  18  Southeastern  Keporter,  282,  decided 
November  23,  1893.  Defendant  had  been  imprisoned  since 
September,  1892,  during  which  time  he  was  ready  and  anxious 
for  a  trial,  and  his  case  was  set  for  trial  on  the  15th  of  February, 
1893 ;  the  case  was  called,  and  he  demanded  a  trial,  but  the 
Commonwealth's  attorney  announced  that  he  had  made  no  pre- 
paration for  trial  at  that  term,  that  he  had  recalled  processes 
issued  for  witnesses,  that  he  could  offer  no  evidence  at  that 
term,  though  defendant  offered  to  admit  evidence  taken  at 
former  trials,  except  that  of  one  B.,  who  being  in  prison  for 
felony,  was  incompetent  to  testify,  and  that  if  ruled  to  trial  a 
nolle  prosequi  would  be  entered.  The  court  then  continued 
the  case  to  March  16,  the  day  on  which  B.'s  sentence 
would  expire.  Held :  That  the  court  erred  in  such  continuance, 
as  there  was  no  good  ground  therefor,  and  under  Constitution, 
Article  1,  Section  10,  and  Code,  this  section,  the  prisoner  was 
entitled  to  a  speedy  trial. 

Section  4017.  ♦ 

In  Sperrt/s  Case,  9  Leigh,  623,  decided  by  the  General  Court, 
December,  1838,  it  was  held :  In  a  prosecution  for  felony  the 
accused  must  be  arraigned  and  plead  in  person,  and  in  all  the 
subsequent  proceedings  he  must  appear  in  person,  not  by  attor- 
ney; and  such  appearance  in  person  must  be  shown  by  the 
record. 

In  Hooker's  Case^  13  Grat.,  763,  decided  November  23,  1855, 
it  was  held :  A  verdict  having  been  found  against  a  prisoner,  he 
moves  the  court  to  set  it  aside  as  contrary  to  evidence,  which 
motion  is  on  another  day  overruled.  On  the  day  when  the 
motion  is  made,  and  also  when  it  is  overruled,  the  record  states 
that  the  prisoner  appeared  by  attorney,  and  there  is  nothing  in 
the  record  to  show  that  he  was  present.     This  is  error. 

In  Pl-Ter's  Case,  14  Grat.,  710,  decided  August  20,  1858,  it 
was  held,  p.  713 :  In  misdemeanor  the  personal  presence  of  the 
defendant  is  not  necessary  at  the  trial,  but  where  a  man  is  to 
receive  any  corporeal  punishment,  judgment  cannot  be  given  in 
his  absence. 

For  the  reference  to  19  Grat.,  656,  see  supra.  Section  4016, 
Jackson's  Case. 

In  BoswelVs  Case,  20  Grat.,  860,  decided  March,  1871,  it  was 
held:  The  act  which  provides  that  a  person  tried  for  felony 
shall  be  personally  present  during  the  trial,  does  not  apply  be- 
fore his  arraignment,  but  before  his  arraignment  an  order  may 
be  made  m  his  absence. 


Citations  to  the  Code  of  Virginia.  1059 

In  Lawrence's  Case,  30  Grat.,  845,  decided  March  21,  1878,  it 
^as  held:  It  is  necessary  that  the  prisoner  shall  be  present 'in 
person  when  arraigned,  and  during  his  trial,  but  if  it  may  be  in- 
ferred from  the  record  that  he  was  present,  that  is  sufficient, 
though  it  is  not  formally  stated  that  he  was  present. 

It  is  not  necessary  that  the  prisoner  should  be  present  when 
the  jury,  which  had  been  sent  out  for  the  night,  is  brought  in  in 
the  morning  and  sent  to  their  room. 

In  Price's  Case,  33  Grat.,  819,  decided  January,  1880.  Upon 
the  trial  of  P.  for  murder,  the  jury  found  him  not  guilty  of  the 
murder,  but  guilty  of  involuntary  manslaughter,  and  assessed 
upon  him  a  fine  of  five  hundred  dollars,  and  the  court  thereon 
entered  a  judgment  discharging  him.  At  the  same  term  of  the 
court,  in  the  absence  of  P.,  the  court  set  aside  the  judgment  and 
-entered  a  judgment  against  him  for  the  fine  of  five  hundred  dol- 
lars and  six  months  imprisonment,  and  directed  him  to  be 
arrested  and  committed  to  prison.  Held:  The  first  judgment 
was  erroneous. 

During  the  same  term  of  the  court  the  matter  was  under  the 
control  of  the  court,  and  it  was  competent  for  the  court  to  set 
aside  the  first,  and  render  the  second  judgment. 

It  was  not  necessary  that  P.  should  be  present  at  the  court 
when  the  second  judgment  was  entered. 

In  Jones's  Case,  79  Va.,  213,  decided  July  24,  1884,  it  was 
held:  It  is  not  error  wherefor  a  verdict  of  guilty  will  be  set 
aside,  that  in  the  absence  of  the  prisoner,  on  the  morning  of  the 
second  day  of  the  trial,  the  jury  is  called  and  sent  to  their  room 
to  consider  of  their  verdict,  the  jury  afterwards  returning  into 
court  and  in  the  presence  of  prisoner  returning  their  verdict. 

In  Cluverius's  Case,  81  Va.,  787,  decided  May  6,  1886,  it  was 
held :  Where  at  the  end  of  the  record  of  the  proceedings  of  the 
court  on  the  day  of  conviction,  it  is  stated  and  "  Thereupon  the 
accused  was  remanded  to  jail,"  is  conclusive  that  he  had  been 
personally  present  during  all  the  proceedings  had  that  day. 

In  Curtis's  Case,  87,  Va.j  589,  decided  April  2,  1891,  it  was 
held :  Where  trial  interrupted  by  sudden  fit  and  the  removal  of 
prisoner  was  resumed  upon  his  restoration  and  return  into 
court.     Held  :  Not  error. 

In  Sfielton's  Case,  89  Va.,  450,  decided  December  1,  1892,  it 
was  held :  A  person  indicted  for  felony  must  be  shown  from  the 
record  to  have  been  personally  present  at  every  stage  of  the 
prosecution ;  nor  can  he  waive  the  right  to  be  iiresent,  and  entry 
upon  the  record.  "  This  case  was  continued  for  the  defendant" 
does  not  show  that  he  was  personally  present,  as  it  is  a  settled 
principal  that  the  presumption  that  a  court  of  general  juris- 
diction acts  rightly  cannot  supply  an  essential  part  of  the 
record. 


1060  Citations  to  the  Code  of  Vikginia. 

Section  4018. 

In  Sprouce's  Case,  2  Va.  Cases,  375,  decided  by  the  General 
Court,  November,  1823,  it  was  held :  A  veniremaji,  who  had  heard 
a  relation  of  what  the  principal  witness  for  the  prosecution  had 
sworn  to,  and  had  said  that  if  these  things  were  true  he  be- 
lieved the  prisoner  guilty;  but  who  declared,  on  his  voir  direy 
that  he  felt  no  prejudice,  was  open  to  conviction,  and  if  the  facts 
did  not  turn  out  as  they  had  been  represented  he  was  ready  to 
change  his  opinion,  is  a  good  juror,  and  the  prisoner's  challenge 
for  cause  was  properl}^  overruled. 

In  Hughes^ s  Case,  5  Rand.,  655,  decided  by  the  General  Court,. 
November,  1826,  it  was  held :  A  hypothetical  declaration  (made 
by  a  juror  before  he  was  impaneled),  that  "if  he  (the  prisoner) 
killed  the  man  he  ought  to  be  hanged,"  is  not  a  sufficient  ground 
on  which  to  grant  a  new  trial,  such  declaration  not  being  an 
opinion  as  to  the  prisoner's  guilt. 

In  Pollard's  Case^  5  Rand.,  659,  decided  by  the  General 
Court, "June,  1827,  it  was  held:  A  juror,  who  having  heard  the 
testimony  of  a  witness  in  the  cause  and  then  formed  an  opinion 
on  it,  and  was  doubtful  whether  he  had  expressed  the  opinion 
or  not,  though  he  thought  it  most  probable  he  had  expressed  it, 
but  declared  that  at  the  time  of  the  trial  he  had  no  prejudice 
against  the  prisoner  or  his  cause,  and  that  he  could,  as  he  be- 
lieved, give  the  prisoner  as  fair  a  trial  as  if  he  had  not  heard 
anything  on  the  subject,  is  an  impartial  juror,  and  a  challenge 
against  him  for  cause  ought  to  be  overruled. 

In,  Jb7ies's  Case,  1  Leigh,  598,  decided  November,  1829,  it  was 
held :  By-standers  are  called  as  jurors  in  a  capital  case,  and,  at  the 
instance  of  the  accused,  are  sworn  and  examined  touching  their 
indiflferency,  and  then  elected  by  the  prisoner  and  sworn  of  the 
jury;  upon  objections  to  the  indiflferency  of  these  jurors,  dis- 
covered after  the  trial,  not  directly  inconsistent  with  what  was 
disclosed  by  the  jurors  themselves  on  their  examination  touch- 
ing their  indiflferency,  the  court  ought  not  to  set  aside  a  verdict 
of  guilty,  just  in  itself,  though  the  objections  be  such,  that  if 
known  and  disclosed  before  the  jurors  were  elected  and  sworn, 
they  might  have  been  good  cause  of  challenge  to  the  jurors, 
much  less  if  the  objections  be  such  as  would  not  have  been 
good  cause  of  challenge. 

In  Brown's  Case,  2  Leigh,  769  (erroneously  quoted  778) 
decided  by  the  General  Court,  November,  1830:  A  person 
being  called  as  a  juror  in  a  case  of  felony,  says  on  voir  dire, 
"that  he  had  expressed  an  opinion  on  the  circumstances 
as  he  had  heard  them  narrated  in  the  country,  but  he  had  not 
heard  any  of  the  evidence  given  on  the  examination  of  the  pris- 
oner, or  conversed  with  any  of  the  witnesses  or  parties,  and  he 
did  not  think  the  opinion  so  formed  would  have  any  influence 


Citations  to  the  Code  of  Vieginia.  1061 

on  his  mind  in  trying  the  case,"  and  this  juror  is  challenged  for 
eause.     Held :  The  challenge  for  cause  rightly  disallowed. 

In  Osiander's  Case,  3  Leigh,  780,  decided  July,  1831.  A 
person  called  as  a  juror  in  a  criminal  cage,  and  examined  as  to 
his  indifferency  on  his  voh'  dire,  declared  he  had  heard  reports 
concerning  the  case  in  the  country,  and  a  state  of  the  circum- 
stances from  one  of  the  witnesses,  and  had  formed  a  hypotheti- 
cal opinion,  but  he  believed  it  would  not  influence  his  mind  as 
a  juror ;  he  believed  the  account  he  had  heard  of  the  case  at  the 
time  he  heard  it  (and  he  did  not  now  express  any  doubt  of  its 
truth)  if  the  evidence  at  the  trial  should  correspond  with  the 
account  he  had  heard,  his  former  opinion  would  remain,  but  if 
it  should  be  different,  he  felt  satisfied  he  would  be  able  to  decide 
the  cause  w'ithont  being  influenced  by  what  he  had  before  heard, 
and  without  prejudice;  and  it  did  not  appear  that  the  witness 
had  ever  before  expressed  the  opinion  he  had  so  formed.  Held : 
Such  preconceived  hypothetical  opinion  did  not  constitute  good 
cause  of  .challenge  to  the  juror.  To  constitute  good  cause  of 
challenge  to  a  juror,  on  the  ground  of  preconceived  opinion  of 
the  case  formed  by  him,  it  must  appear  that  such  preconceived 
opinion  was  a  decided  one. 

In  Stephens  Case,  4 Leigh,  679,  decided  by  the  General  Court, 
December,  1833,  it  was  held :  Motion  in  arrest  of  judgment  be- 
cause several  of  the  petty  jurors  were  not  freeholders,  this 
being  matter  of  fact  not  appearing  in  the  record,  is  not  a  good 
reason  for  arresting  judgment. 

In  Hendrick's  Case,  5  Leigh,  708,  decided  by  the  General 
Court,  December,  1834,  it  was  held :  A  person  called  to  serve 
as  a  juror  in  a  criminal  case,  being  examined  on  his  voir  dire, 
first  says  he  is  not  a  freeholder,  but  soon  afterwards,  be- 
fore the  panel  is  completed,  returns  into  court  and  says  he  was 
mistaken,  that  he  has  been  reminded  of  his  mistake  by  a  friend, 
and  that  he  is  a  freeholder ;  the  p ourt  holds  him  a  good  and 
lawful  juror,  and  then  the  prisoner  challenges  him  perempto- 
rily. Held :  The  court  was  right  in  permitting  such  coVrection 
of  the  first  mistaken  statement  and  in  holding  him  a  good  and 
lawful  juror. 

Persons  caUed  to  serve  as  jurors  in  a  criminal  case,  examined 
on  their  voir  dire,  say  they  have  heard  part  of  the  evidence  on 
a  former  investigation,  and  formed  some  opinion  thereon,  yet 
the  opinion  so  formed  would  nowise  incline  their  minds  as 
jurors  for  or  against  the  prisoner,  but  they  could  pass  upon  the 
case  upon  the  whole  evidence  as  impartially  as  if  they  had 
never  heard  of  it.  Held :  Such  persons  are  good  and  impartial 
jurors. 

A  person  called  to  serve  as  a  juror  in  a  criminal  case  is 
elected  by  the  prisoner,  but  before  he  is  sworn  the  prisoner 


1062  Citations  to  the  Code  of  Virginia. 

retracts  his  election,  and  asks  that  he  may  be  permitted  to  chal- 
lenge him  peremptorily;  the  court  refused  to  permit  such  per- 
emptory challenge,  and  the  juror  is  sworn  and  serves  on  the  jury. 
Held:  This  was  error,  the  prisoner  having  an  absolute  right 
to  challenge  any  juror  peremptorily  at  any  time  before  he  is 
sworn. 

In  Moran's  Case,  9  Leigh,  651,  decided  by  the  General  Court, 
June,  1839.  On  a  trial  for  murder,  two  jurors  are  severally 
examined  on  their  voir  dire:  1.  One  states  that  he  was  not 
present  at  the  examination  of  the  prisoner  before  the  hustings 
court,  and  has  heard  no  statement  of  the  evidence  from  any 
witness  or  person  who  was  present ;  that  he  has  heard  the  case 
spoken  of  in  the  town,  and  rumors  in  regard  to  its  circum- 
stances, upon  which  he  has  expressed  no  opinion,  though  he 
believes  those  rumors  to  be  true,  and  if  they  should  turn  out 
upon  the  trial  to  be  true  he  has  a  decided  opinion  in  regard  to 
the  case ;  but  he  feels  no  prejudice,  and  is  satisfied  that  he  shall 
be  able  to  decide  the  case  upon  the  evidence  which- may  be 
given  in,  uninfluenced  by  the  rumors  he  has  heard;  that  the 
opinion  he  had  formed  was,  that  if  the  prisoner  had  stabbed 
the  deceased  under  the  circumstances  which  he  had  heard,  he 
ought  to  be  punished.  2.  The  other  juror  states  that  he  has 
made  up  no  decided  opinion ;  that  he  has  heard  part  of  the  evi- 
dence of  one  witness,  and  formed  an  impression,  and  if  the 
balance  of  the  testimony  should  run  in  that  way,  that  impres- 
sion would  be  confirmed;  that  as  far  as  the  evidence  went  he 
had  a  decided  opinion,  if  the  rest  should  not  run  against  it; 
but  that  he  has  no  prejudice,  has  not  expressed  any  opinion, 
and  is  prepared  to  decide  the  case  according  to  the  evidence 
which  may  be  given  in,  uninfluenced  by  the  portion  of  evidence 
he  had  heard.     Held :  Both  the  jurors  are  competent. 

In  Maize's  Case,  9  Leigh,  661,  decided  by  the  General  Court, 
December,  1839.  On  'a  trial  for  felony,  a  juror,  being  exam-' 
ined  on  his  voir  dire,  states  that  he  was  not  present  at  the  ex- 
amining' court,  but  has  heard  a  report  of  some  of  the  circum- 
stances of  the  case ;  that  he  does  not  know  that  the  report  came 
from  any  one  who  heard  the  evidence  at  the  examining  court, 
nor  does  he  believe  it  to  be  a  full  detail  of  all  the  circumstances, 
but  he  believes  it  to  be  true,  and  upon  that  belief  has  formed 
and  expressed  a  decided  opinion,  which  is  still  abiding  on  his 
mind ;  but  he  believes  that,  notwithstanding  what  he  has  heard, 
his  mind  is  open  to  conviction ;  and  he  has  no  doubt  that,  if  the 
facts  should  turn  out  to  be  different  from  what  they  have  been 
represented  to  him,  his  opinion  would  be  changed.  Held :  He 
is  a  competent  juror. 

In  Stockley's  Case,  10  Leigh,  678  (2d  edition,  712),  decided 
by  the  General  Court,  December,  1840,  it  was  held :  A  circuit 


Citations  to  the  Code  of  Virginia.  1063 

court  has  the  right  and  power,  on  the  trial  of  an  indictment  for 
felony,  to  compel  a  venireman  or  bystander,  called  to  serve  as 
a  juror  on  the  trial,  to  be  sworn  on  his  voir  dire,  and  to  answer 
proper  questions  touching  his  fitness  as  a  jnror  in  the  particu- 
lar case. 

In  Heath's  Case,  1  Eob.,  735  (2d  edition,  796),  decided  by  the 
General  Court.  A  person  called  as  a  juror  upon  a  trial  for 
felony,  and  sworn  to  answer  questions  touching  his  competency, 
having  deposed  that  he  has  formed  no  opinion  nor  come  to  any 
conclusion  on  the  case,  prisoner's  counsel  is  about  to  interro- 
gate him  further,  and  asks  whether  he  has  not  conversed  much 
about  the  case,  when  the  court  arrests  the  examination,  and  de- 
cides that  no  further  question  shall  be  put  to  the  juror  by  the 
prisoner's  counsel,  and  that  he  is  a  competent  juror.  Held: 
Such  proceeding  and  decision  of  the  court  are  erroneous,  and 
judgment  against  the  prisoner  must  be  reversed  therefor. 

The  doctrine  laid  down  in  Osiayider's  Case,  3  Leigh,  780,  and 
in  Armistead^s  Case,  11  Leigh,  657,  as  to  the  disqualification  of 
jurors  by  preconceived  opinions  respecting  the  case  of  the  ac- 
cused is  reaffirmed.  A  person  is  not  rendered  incompetent  as 
a  juror  in  a  criminal  case  by  the  formation  of  a  legal  opinion 
upon  facts  previously  presented  to  his  mind,  as  he  would  be  by 
the  formation  of  previous  convictions  in  respect  to  the  facte 
themselves. 

After  a  verdict  of  conviction  for  murder  in  the  first  degree, 
prisoner  adduces  testimony  that  two  of  the  jurors  Avho  tried  the 
case,  and  who,  on  the  voir  dire,  declared  that  they  had  not 
formed  or  expressed  any  opinion  as  to  the  guilt  or  innocence  of 
the  prisoner,  had,  in  fact,  previous  to  the  trial,  expressed  de- 
cided opinions  that  the  prisoner  was  guilty,  and  ought  to  be 
hung;  of  which  circumstance,  the  prisoner  alleges,  he  had  no 
knowledge  until  since  the  verdict  was  rendered;  and  on  this 
ground  he  moves  to  set  aside  the  verdict.     Held : 

Such  inquiry  was  open,  and  the  evidence  admissible,  for 
the  purpose  of  showing  perjury  and  corruption  in  the  juiors; 
but,  it  belonged  exclusively  to  the  judge  who  presided  at 
the  trial  to  weigh  the  conflicting  credibility  of  the  witnesses  ad- 
duced by  the  prisoner  and  of  the  jurors,  and  to  decide  whether, 
in  justice  to  the  prisoner,  and  upon  all  the  circumstances  of  the 
case,  a  new  trial  ought  or  ought  iiot  to  be  awarded. 

In  Overhee's  Case,  1  Rob.  (2d  edition)  819,  decided  by  the 
General  Court.  Pending  a  trial  for  felony,  and  before  the  testi- 
mony closes,  five  of  the  jiiry  having  received  permission  to  re- 
tire from  the  court-room  accompanied  by  the  shenff,  another 
juror  thereupon  leaves  the  juiy-box  without  the  knowledge  of 
the  court,  passes  out  of  the  courthouse  through  a  crowd  of  per- 
sons coUected  about  the  door,  and  remains  absent  a  few  mm- 


1064  Citations  to  the  Code  of  Virginia. 

utes,  after  wliich  lie  returns  into  court,  having,  as  he  deposes, 
held  no  communication  whatever  with  any  person  during  his 
absence,  but  not  having  been,  during  that  period,  in  charge  of 
the  sheriff,  or  even  seen  by  him.  The  trial  proceeds,  and  the 
prisoner  is  convicted.  Held:  Such  separation  of  the  juror  from 
his  felloAvs  is  sufficient  cause  for  setting  aside  the  verdict. 

The  reference  to  2  Eob.,  77,  is  error. 

In  HailstocKs  Case,  2  Grat.,  564,  decided  December,  1845,  by 
the  General  Court.  A  person  called  as  a  juror  on  a  trial  for  a 
felony  swears  upon  his  voir  dire  that  he  has  not  formed  an 
opinion  as  to  the  prisoner's  guilt  or  innocence,  and  is  challenged 
peremptorily  by  the  prisoner,  whereupon  on  getting  out  of  the 
courthouse  he  remarks  in  a  rather  warm  and  excited  manner, 
"  It  is  well  I  was  rejected,  for  if  I  were  on  the  jury  I  would  send 
the  prisoner  to  the  other  side  of  Boston."  Afterwards  the  pris- 
oner, to  make  up  the  jury,  elects  this  person  as  a  juror,  not  then 
being  informed  of  his  remark.    Held :  No  ground  for  a  new  trial. 

In  Day's  Case,  3  Grat.,  629,  decided  December,  1846,  by  the 
General  Court,  it  was  held :  A  juror  in  a  criminal  case  must  be 
a  freeholder  in  the  county  to  the  officer  of  which  the  venire 
facias  is  directed. 

In  Epes's  Case,  5  Grat.,  676,  decided  December,  1848,  it  was 
held,  by  the  General  Court,  p.  681 :  Several  days  being  taken 
up  in  completing  the  panel  in  a  trial  for  murder,  it  is  not  neces- 
sary that  the  jurors  who  have  been  sworn  shall  be  committed 
to  the  custody  of  the  sheriff  until  the  whole  number  of  the 
panel  is  completed. 

The  prisoner  objecting  to  a  juror  on  the  ground  that  the 
venire  facias  was  illegally  executed,  and  the  court  sustaining  the 
objection,  it  is  proper  to  set  aside  the  whole  return  and  direct 
another  venire  facias. 

In  Smith's  Case,  6  Grat.,  696,  decided  December,  1849,  by 
the  General  Court,  it  was  held :  A  prisoner  is  examined  before 
the  Hustings  Court  of  Bichmond  and  sent  on  to  the  Circuit 
Court  of  Henrico  to  be  tried,  and  the  venire  facias  is  directed 
to  the  sergeant  of  the  corporation,  who  executes  it  and  returns 
the  panel  for  the  trial  of  the  prisoner.  The  venire  facias  is  pro- 
perly executed  by  the  sergeant. 

In  Smith's  Case,  7  Grat.,  593,  decided  June,  1850,  it  was  held, 
by  the  General  Court :  The  entertaining  a  decided  opinion  of 
the  prisoner's  guilt,  formed  on  the  testimony  as  published  in  the 
newspapers,  is  not  a  valid  objection  to  a  juror  if  he  thinks  he 
can  discard  his  opinion,  and  that  it  would  not  influence  his 
judgment,  and  that  he  could  give  the  prisoner  a  fair  trial  ac- 
cording to  the  law  and  the  evidence  submitted  to  the  jury. 

The   prisoner  was   charged  with  having  advised,  etc.,  two 


Citations  to  the  Code  of  Virginia.  1065 

slaves  to  abscond  at  the  same  time ;  a  veiiireinan  summoned  on 
the  first  trial  was  stricken  from  the  panel  by  the  prisoner.  This 
is  not  a  valid  objection  to  him  as  a  juror  on  the  second  trial. 

In  Currans's  Case,  7  Grat.,  619,  decided  June,  1850,  it  was 
held,  by  the  General  Court :  A  juror  having  expressed  himself 
before  the  jury  was  empaneled  as  determined  to  punish  a  pris- 
oner if  taken  on  a  jury,  not  from  any  maUce  toward  him,  but 
from  an  opinion  of  his  conduct,  is  no  ground  for  setting  aside 
the  verdict  and  granting  a  new  trial. 

In  Clove's  Case,  8  Grat.,  606,  decided  December,  1851,  by  the 
General  Court,  it  was  held:  Upon  trial  for  murder,  a  venireman 
when  called  states  that  he  has  conscientious  scruples  about  the 
propriety  of  capital  punishment,  and  is  opposed  to  it,  and  being 
asked  by  the  Commonwealth's  attorney  whether  if  the  testimony 
in  the  cause  proved  the  prisoner  to  be  guilty  of  murder  in  the 
first  degree  he  would  convict  him  of  it,  replies,  "I  do  not  know." 
He  is  properly  challenged  for  cause  by  the  attorney,  and  set 
aside  by  the  court. 

A  veniremayi  when  called  stated  "  that  he  had  not  heard  any 
of  the  evidence,  nor  had  he  heard  any  report  of  it  from  those 
who  had  heard  it,  but  from  the  rumor  of  the  neighborhood  he 
had  formed  an  opinion,  which  at  the  time  he  spoke  was  existing 
on  his  mind,  and  which  he  should  stick  to  unless  the  evidence 
should  turn  out  to  be  different  from  what  rumor  had  reported  it 
to  be ;  that  he  had  no  prejudice  or  partiality  for  or  against  the 
prisoner,  and  believed  he  would  give  him  a  fair  and  impartial  trial 
according  to  the  evidence  that  should  be  given  in."  He  is  a 
competent  juror,  and  challenge  of  him  for  cause  by  the  prisoner 
was  properly  overruled.  -.orn   -i. 

In  Dowdy's  Case,  9  Grat.,  727,  decided  August  16,  1852,  it 
was  held  :  It  is  good  objection  to  a  juror  in  a  case  of  felony  that 
he  is  not  a  freeholder.  i  i  j 

If  a  prisoner's  objection  to  a  juror  is  improperly  overniled, 
the  error  is  not  cured  by  the  juror's  name  being  stricken  off  froni 
the  panel  by  the  prisoner,  or  his  not  being  drawn  as  one  of 
the  twelve  who  are  to  try  the  prisoner.  .,    ^oro    u 

In  Wormley's  Case,  10  Grat.,  658,  decided  April,  1853,  it 
was  held:  After  the  original  venire  is  exhausted  without  com- 
pleting the  panel,  the  court  may  order  any  number  of  persons 
to  be  summoned  it  may  think  necessary,  and  if  the  sheriff,  for 
want  of  time  or  other  cause,  fails  to  summon  the  whole  number, 
his  return  is  valid  for  as  many  as  are  summoned. 

The  prisoner  objects  to  a  juror,  and  his  objection  is  overruled, 
and  he  excepts.  After  the  panel  is  made  up  but  before  the 
prisoner  has  exercised  his  right  of  challenge,  the  court  on  the 
motion  of  the  attorney  for  the  Commonwealth,  out  of  abundant 
oaution,  sets  aside  the  juror.     This  is  not  error. 


1066  Citations  to  the  Code  of  Virginia. 

In  Jacques's  Case,  10  Grat.,  690,  decided  April,  1853,  it  was 
held :  On  a  trial  for  arson,  the  nephew  of  the  deceased  wife  of 
the  person  whose  house  was  burned,  if  she  left  children,  is  an 
incompetent  juror. 

Such  relationship  to  a  party  on  the  record  would  be  a  cause 
of  principal  challenge.  If  it  be  not  a  cause  of  principal  chal- 
lenge because  the  person  whose  house  was  burned  is  not  a  party 
on  the  record,  it  is  a  case  in  which,  a  favor  being  apparent,  he 
should  be  set  aside. 

In  such  case  if  the  deceased  wife  left  no  issue,  it  is  for  the 
prosecution  to  show  the  fact,  and  that  fact  not  being  shown,  the 
objection  is  valid. 

In  Montagues  Case,  10  Grat.,  767,  decided  October,  1853,  it 
was  held :  On  a  trial  for  a  felonioue  offence  the  court  of  its  own 
motion,  without  the  suggestion  of  either  party,  may  examine  all 
upon  oath  who  have  been  summoned  to  serve  upon  the  jury, 
touching  any  disability  created  by  statute,  such  as  infancy,  want 
of  freehold  or,  property  qualifications,  or  in  capital  cases,  con- 
scientious scruples  on  the  subject  of  capital  punishment,  and 
upon  any  such  disability  being  thus  made  to  appear,  or  if  it 
be  thus  shown  that  any  one  summoned  has  been  convicted  of 
perjury,  the  court  may,  and  should  set  aside  any  such  juror  of  its 
own  action,  without  objection  made  by  either  party. 

On  a  trial  for  felony  the  court  of  its  own  motion,  without  the 
suggestion  or. consent  of  either  party,  may  excuse  or  set  aside  a 
juror  who,  though  in  all  other  respects  competent,  is  disabled 
physically  or  mentally,  by  disease,  domestic  aflfliction,  ignorance 
of  the  vernacular  tongue,  loss  of  hearing,  or  other  like  cause 
from  properly  performing  the  duties  of  a  juror.  But  the  erroneous 
exercise  of  this  power  is  a  matter  of  exception  by  the  prisoner^ 
for  which  the  judgment  of  the  court  may  be  reversed. 

As  no  challenge  to  a  juror  is  allowed  to  the  Commonwealth 
except  for  cause  when  such  challenge  is  made,  the  cause  should 
be  shown,  and  should  be  a  good  and  legal  cause  for  the  exclu- 
sion of  the  juror,  otherwise  it  should  be  overruled. 

The  decision  of  a  court  allowing  the  challenge  on  the  part  of 
the  Commonwealth,  or  disallowing  a  part  of  the  challenge  on  the 
part  of  the  accused,  whether  such  challenge  be  a  principal  chal- 
lenge or  a  challenge  to  the  favor,  is  a  matter  of  exception  on 
the  part  of  the  accused,  which  it  is  his  right  to  have  reviewed  in 
the  appellate  court. 

The  court  cannot,  of  its  own  inotion,  whether  no  challenge  is 
made  without  good  cause,  set  aside  a  juror  except  where  he  is 
disabled  physically  or  mentally  from  properly  performing  the 
duties  of  a  juror  or  is  disqualified  by  statute. 

Though  in  all  cases  great  weight  is  justly  due  to  the  opinion 
of  the  court  before  whom  the  jurors  are  questioned  and  exam- 


Citations  to  the  Code  of  Virginia.  1067 

ined,  yet  upon  exception  taken  the  appellate  court  must  judge 
from  the  facts  therein  stated  whether  the  reason  for  setting 
aside  a  juror  is  good  and  sufficient  or  contrary. 

A  talesman  when  examined  on  his  voii'  dire  said  that  he  had 
heard  a  great  deal  about  the  case,  but  he  had  not  heard  or  read 
the  evidence  given  at  the  examinations  before  the  mayor  or 
hustings  court,  and  that  he  had  formed  no  opinion  on  the  sub- 
ject. He  then  stated  that  since  the  prisoner  had  been  in  jail 
his  wife  and  family  had  moved  to  the  lot  adjoining  his  resi- 
dence, and  had  lived  there ;  they  were  often  at  his  house,  and 
that  there  was  great  intimacy  between  the  families,  and  on  that 
account  he  woiild  rather  not  sit  in  the  case,  that  his  mind  might 
be  influenced ;  and  in  answer  to  a  question  from  the  court,  he 
said  he  was  unwilling  to  trust  himself  under  the  circumstances; 
he  thought  he  would  give  the  prisoner  a  fair  trial  on  the  evi- 
dence; that  he  had  no  prejudice  for  or  against  the  prisoner; 
there  was  no  connection  by  blood  or  marriage  between  them, 
and  that  he  had  never  spoke  to  the  prisoner's  wife  or  family 
about  the  trial.  He  is  a  competent  juror,  and  it  is  error  to  set 
him  aside,  for  which  the  prisoner  may  except  and  have  the 
judgment  reversed. 

The  appellate  court  will  not  inquire  whether  injury  has  been 
done  to  the  prisoner  by  improperly  setting  aside  a  competent 
juror,  but  the  law  will  intend  prejudice  to  the  prisoner. 

In  Dilwortlis  Case,  12  Grat.,  689,  decided  March  5,  1855,  it 
was  held :  On  a  trial  for  a  felony,  a  member  of  the  grand  jury 
which  found  the  indictment  against  the  prisoner  is  not  a  com- 
petent juror  to  try  him.  If  the  prisoner  does  not  know,  or 
might  not  with  due  diUgence  have  known,  that  one  of  the  jury 
was  a  member  of  the  grand  jury  which  found  the  indictment 
against  him,  until  after  the  jury  is  impaneled  and  sworn,  he 
may  make  the  objection  to  the  juror,  if  made  before  any  of  the 
evidence  is  introduced. 

The  statute  only  relates  to  those  disabilities  created  by  our 
statutes,  and  does  not  refer  to  other  causes  of  challenge  which 
exist  at  common  law,  and  as  to  which  our  statutes  are  silent. 

In  Bristow's  Case,  15  Grat.,  634,  decided  July,  1859,  it  was 
held,  p.  648 :  It  is  a  principal  cause  of  challenge  to  a  juror  that 
he  was  one  of  the  grand  jury  that  found  the  indictment.  But 
if  the  objection  is  not  taken  until  after  the  verdict,  it  will  not  be 
set  aside  on  this  ground,  unless  it  appears  from  the  whole  case 
that  the  juror  was  biased  against  the  prisoner,  who  had  not 
therefore  had  a  fair  and  impartial  trial.  .  •  ,  * 

An  objection  to  the  mode  of  selecting  a  jury  in  a  trial  for 
murder  must  be  made  at  the  time  the  jury  are  chosen,  and  pri- 
soner cannot  avail  himself  of  it  after  verdict. 

After  the  panel  has  been  completed,  and  the  prisoner  has 


1068  Citations  to  the  Code  of  ViRomiA. 

struck  off  the  eight,  the  jury  may  be  selected  from  the  remain- 
ing sixteen,  either  by  drawing  by  lot,  four  who  shall  be  dis- 
charged, or  the  twelve  who  shall  constitute  the  jury. 

In  Bootlis  Case,  16  Grat.,  519,  decided  April  18,  1861,  it  was 
held  :  Persons  over  sixty  years  of  age  are  not  disqualified  from 
serving  on  grand  juries,  though  they  are  exempted  from  the  ser- 
vice if  they  choose  to  claim  the  exemption. 

In  ^yash:s  Case,  16  Grat.,  530,  decided  October  29,  1861,  it 
was  held :  The  acts  directing  the  issue  of  a  veiiire  facias  are 
merely  directory  to  the  officer,  and  the  prisoner  cannot  object 
to  the  writ  because  the  acts  have  not  been  complied  with. 

Jurors  in  case  of  felony  are  not  now  required  to  own  estate, 
real  or  personal,  of  the  value  of  one  hundred  dollars,  and  if  the 
writ  of  venire  facias  requires  the  officers  to  summon  jurors  with 
this  qualification,  it  will  be  quashed  on  motion  of  the  prisoner. 

If  there  is  an  error  on  the  face  of  the  writ  of  venire  facias, 
and  the  prisoner  moves  to  quash  it,  though  he  does  not  specify 
the  error,  it  may  be  taken  advantage  of  in  the  appellate  court. 

In  Whitehead's  Case,  19  Grat.,  640,  decided  January  24,  1870, 
by  the  military  court  of  appeals,  it  was  held :  The  statute  re- 
quires the  venire  men  to  be  persons  "residing  remote  from  the 
place  where  the  offence  is  charged  to  have  been  committed." 
This  direction  is  mandatory ;  and  the  writ  is  defective,  and 
should  be  quashed  if  it  is  omitted ;  and  it  is  not  in  violation  of 
the  BiU  of  Eights. 

In  Sands's  Case,  21  Grat.,  871,  decided  January,  1871,  it  was 
held :  The  list  given  by  the  judge  to  an  officer  who  is  to  sum- 
mon jurors  for  the  trial  of  a  prisoner  for  felony,  contains  but 
twenty-four  names,  and  the  officer  returns  the  names  of  nine- 
teen of  them  whom  he  has  summoned,  and  of  five  as  not  foimd. 
Though  it  would  be  best  for  the  judge  to  put  more  than  twenty- 
four  names  on  the  list,  it  is  not  error  to  give  but  twenty -four, 
and  the  return  of  the  officer  that  he  has  summoned  less  than 
the  twenty-four,  and  that  the  others  were  not  found,  is  a  valid 
return. 

The  court  before  which  a  prisoner  is  arraigned  for  trial,  if 
qualified  jurors  who  are  not  exempt  from  serving  cannot  be 
conveniently  found  in  the  county  or  corporation,  may  send  to 
another  county  or  corporation  for  such  jurors. 

A  person  who  is  qualified  to  vote  by  the  Constitution  of  Vir- 
ginia is  a  competent  juror,  though  he  is  disabled  from  holding 
•office  by  the  Fourteenth  Amendment  to  the  Constitution  of  the 
United  States.  The  provision  in  the  State  Constitution,  Article 
III.,  Section  3,  has  reference  to  the  disability  to  hold  office 
under  that  Constitution  by  that  provision  which  was  stricken 
out  by  the  vote  of  the  people. 

In  Craft's  Case,  24  Grat.,  602,  decided  November,  1873,  it 


Citations  to  the  Code  of  Virginia.  1069 

■was  held :  If  a  person  has  the  constitutional  qualifications  of  a 
voter,  though  he  has  not  been  registered  and  has  not  voted,  he 
is  a  qualified  juror. 

In  Poindexter^ s  Case.,  33  Grat.,  766,  decided  January,  1880. 
Upon  an  indictment  of  P,  for  the  murder  of  C,  before  the  jury- 
is  called  the  prisoner  moves  the  court  to  quash  the  venire  facias 
and  the  return  thereon  for  errors  and  irregularities  appearing 
thereon.  The  only  ground  of  error  is,  that  the  act  requires  the 
jurors  to  be  summoned,  etc.,  "remote  from  the  place  where  the 
offence  is  charged  to  have  been  committed,"  and  the  language 
of  the  vejiire  facias  is,  "where  the  felony  was  committed." 
Held:  This  was  error. 

A  jury  not  having  been  obtained  from  the  twenty-four  per- 
sons summoned  under  the  first  venire  facias,  a  tales  is  issued 
directing  the  persons  named  by  the  judge  to  be  summoned, 
"who  reside  remote  from  the  place  where  the  felony  was  com- 
mitted." Held :  The  introduction  of  these  words  into  the  tales, 
if  not  required  by  the  statute,  is  in  accordance  with  the  policy 
of  the  law,  and  does  not  invalidate  the  veriire ;  and  in  a  venire 
facias  sent  to  a  distant  city  the  insertion  of  these  words  is  im- 
material. 

In  Bacdgalupo's  Case,  33  Grat.,  807,  decided  January,  1880, 
it  was  held :  In  a  criminal  prosecution  for  felonious  stabbing 
with  intent  to  kill,  the  first  venire  facias  and  the  return  thereon 
having  been  exhausted  without  getting  a  jury,  it  is  not  errror  to 
insert  in  the  second  venire  facias  a  direction  that  persons  be 
summoned  who  reside  remote  from  the  place  where  the  felony 
was  committed. 

In  MitchelVs  Case,  33  Grat.,  845,  decided  March,  1880.  M. 
and  two  others  are  indicted  for  murder  in  the  County  Court  of 
L.,  and  on  their  arraignment  they  elect  to  be  tried  in  the  circuit 
court.  A  writ  of  venire  is  issued  by  the  county  court  for  the 
summoning  of  a  jury,  returnable  to  the  circuit  court,  and  the 
twenty- four  men  summoned  by  the  county  court  are  summoned 
to  the  circuit  court.  On  the  motion  of  the  prisoner  this  veyrire 
is  quashed  by  the  circuit  court,  and  the  court  directs  another 
venire  of  twenty-four  to  be  summoned,  and  names  the  twenty- 
four  summoned  on  the  first  venire.  Held:  The  directing  the 
same  twenty-four  men  to  be  summoned  is  not  error. 

In  Richards's  Case,  81  Va.,  110,  decided  November  19,  1885, 
it  was  held :  In  case  where  death  may  be  the  punishment,  writ 
shall  require  to  be  summoned  twenty-four  persons  of  the  county 
or  corporation,  to  be  taken  from  a  list  to  be  furnished  by  the 
ludce  residing  remote  from  the  place  where  the  offence  is 
chaVed  to  have  been  committed,  and  qualified  in  other  respects 
to  serve  as  jurors.  From  these  shall  be  selected  a  panel  of  six- 
teen free  from  exception,  and  from  this  panel  the  accused  may 


1070  Citations  to  the  Code  of  Virginia. 

strike  four,  and  the  remaining  twelve  may  constitute  the  jury. 
Omission  to  comply  with  these  provisions  is  fatal  error. 

In  Honesty's  Case,  81  Va.,  283,  decided  January  7,  1886,  it 
was  held:  In  a  case  where  death  may  be  the  punishment,  the 
writ  shall  require  to  be  summoned  twenty-four  persons  of  the 
county  or  corporation,  to  be  taken  from  a  list  to  be  furnished  by 
the  judge,  residing  remote  from  the  place  where  offence  is 
charged  to  have  been  committed,  and  qualified  in  other  respects 
to  serve  as  jurors.  From  these  shall  be  selected  a  panel  of  six- 
teen, free  from  exception,  and  from  this  panel  the  accused  may 
strike  four,  and  the  remaining  twelve  shall  constitute  a  jury. 

In  Lawrence's  Case,  81  Va.,  484,  decided  February  25,  1886, 
it  was  held :  A  man  of  color  indicted  for  a  felony  is  not  entitled 
to  demand  to  be  tried  by  a  mixed  jury. 

In  legal  sense  all  parts  of  adjoining  county  are  remote  from 
scene  of  crime,  where  it  is  alleged  it  was  committed  within  a 
corporation.  When  one  juror  has  been  summoned  from  too 
near  the  scene  of  crime,  objection  should  be  made  to  him  and 
not  to  the  array. 

In  Coleman's  Case,  84  Va.,  1,  decided  November  17,  1887. 
The  writ  of  venire  facias  commands  sheriff  to  summon  twenty- 
four  persons  from  list  to  be  furnished  by  county  judge,  and  to 
have  "there"  this  writ  and  the  judge's  list  of  said  jurors,  is  fol- 
lowed in  the  record  by  the  "list  of  venire''  referred  to  above, and 
is  signed  by  the  name  of  the  county  judge  with  nothing  to  indi- 
cate his  official  capacity,  and  is  endorsed  "executed  by  sum- 
moning the  within-mentioned  parties"  and  signed  by  the  sheriff. 
Held:  The  record  conclusively  shows  that  the  persons  were 
summoned  from  a  list  furnished  and  signed  by  the  county 
judge. 

In  Vawter's  Case,  87  Va.,  245,  decided  December  11,  1890,  it 
was  held :  Ordering  persons  to  be  summoned  without  a  writ  of 
venire  facias  is  ground  for  motion  in  arrest  of  judgment,  though 
the  objection  was  not  made  before  the  jury  were  sworn. 

In  BoUnson's  Case,  88  Va.,  900,  decided  March  17,  1892,  it 
was  held :  Where  the  record  is  silent,  this  court  will  presume 
that  an  order  to  summon  a  grand  jury  was  duly  made. 

Objection  is  waived,  when  not  made  till  after  verdict,  that 
without  writ  of  venire  facias  grand  jury  was  summoned  from 
list  furnished  by  the  judge.  Moreover,  by  Section  3978  a  special 
grand  jury  may  be  summoned  without  such  list. 

In  Prince's  Case,  89  Va.,  330,  decided  September  22,  1892,  it 
was  held :  Where  a  venire  facias  was  issued  for  a  jury  for  a 
trial  during  the  term  of  each  of  three  felony  cases,  including 
that  of  the  defendant,  and  defendant  was  tried  by  a  jury  com- 
posed of  persons  thus  summoned,  held :  Such  proceeding  suffi- 
ciently complies  with  Code. 


Citations  to  the  Code  op  Virginia.  1071 

A  juror's  residing  at  place  of  alleged  commission  of  the  offence 
charged  cannot  be  availed  of  by  challenge  to  the  array,  but  by 
objection  to  the  individual  juror. 

In  Clarke's  Case^  18  Southeastern  Keporter,  440,  decided  De- 
cember 7,  1893,  it  was  held :  Where  in  a  criminal  case  a  venire 
facias  is  ordered  to  be  directed  to  the  sergeant  of  another  county 
to  summon  jurors,  under  the  authority  of  Section  4024,  it  is  not 
necessary  that  a  list  be  furnished  such  officer,  as  is  required  by 
Sections  4018  and  4019,  when  jurors  are  summoned  from  the 
county  in  which  the  case  is  tried. 

Section  4019. 

In  Williams's  Case,  85  Va.,  607,  decided  January  10,  1889,  it 
was  held :  Under  this  section,  where  persons  from  the  bystanders 
are  ordered  to  be  summoned  to  complete  the  panel  on  trial  of  a 
felony,  the^hst  is  not  required  to  be  signed  by  the  judge. 

See  the  case  of  Clarke  vs.  The  Commonwealth,  18  S.  E.  Kep., 
440,  cited  supra.  Section  4018. 

Section  4020. 
In  Wormley's  Case,  10  Grat.,  658  and  684,  decided  April,  1853. 
The  regular  term  of  the  court  having  been  spent,  and  only  one 
of  the  veniremen  summoned  to  try  the  prisoner  having  been 
found  free  from  exception,  the  court  discharges  him,  and  being 
of  the  opinion  that  jurors  qualified  to  serve  cannot  be  gotten  in 
the  county,  makes  an  order  directing  the  sheriff  to  summon 
thirty  persons  from  each  of  two  corporations,  to  attend  as 
jurors  for  the  trial  of  the  prisoner  at  a  special  term  of  the 
court  appointed  to  be  held,  and  to  which  time  the  court  ad- 
journs. Held:  It  was  not  necessary  to  have  another  vefiire 
facias  for  summoning  jurors  from  the  county  returnable  to  the 
special  term,  before  making  the  order  to  summon  jurors  from 
abroad;  and  there  was  no  error  in  directing  jurors  to  be  sum- 
moned from  two  counties  or  two  corporations  at  the  same  time. 

Section  4021. 
See  Clove's  Case,  8  Grat.,  606,  cited  ante.  Section  4018 ;  see 
Montague's  Case,  10  Grat.,  767,  cited  ante.  Section  4018. 

Section  4022. 
See  Cl(yre's  Case,  8  Grat.,  606,  cited  ante.  Section  4018. 

Section  4023. 
In  Gilsm's  Case,  2  Va.  Cases,  111,  decided  by  the  General 
Court,  November,  1817,  it  was  held :  If  a  jury  cannot  be  formed 
from  the  original  panel,  nor  from  the  bystanders,  in  conse- 
quence of  the  prisoner's  challenges,  the  court  may  award  a 
venire  facias  commanding  the  sheriff  to  summon  a  specified 


1072  Citations  to  the  Code  of  Virginia, 

number  to  attend  the  court  then  in  session ;  and,  upon  the  re- 
turn of  the  process,  the  prisoner  may  be  compelled  to  elect  a 
jury,  saving  his  right  of  challenge.  Such  process  may  be 
awarded  on  the  report  of  the  sheriff  that  there  are  no  other  by- 
standers. Nor  will  the  court,  at  a  subsequent  time,  hear  proof 
that  there  were  other  qualified  bystanders  who  had  not  been 
called. 

See  Dowdy's  Case,  9  Grat.,  727,  cited  ante^  Section  4018 ;  see 
Bristow's  Case,  15  Grat.,  634,  cited  ante^  Section  4018.  The 
reference  to  21  Grat.,  571,  is  error;  it  should  be  871;  see  ante, 
Section  4018.  See  MitchelVs  Case,  33  Grat.,  845,  cited  ante. 
Section  4018. 

In  JlalVs  Case,  80  Ya.,  555,  decided  June  18,  1885,  it  was 
held:  The  statutory  provisions  are  imperative  and  essential. 
The  accused  is  entitled  to  demand  strict  compliance  with  them. 
Omission  of  such  compliance  is  error. 

In  a  case  where  death  may  be  the  puniphment,  the  writ  shall 
require  to  be  summoned  twenty-four  persons  of  the  county  or 
corporation,  to  be  taken  from  a  list  to  be  furnished  by  the 
judge,  residing  remote  from  the  place  where  the  offence  is 
charged  to  have  been  committed,  and  quahfied  in  other  re- 
spects to  serve  as  jurors.  From  these  shall  be  selected  a  panel 
of  sixteen,  free  from  exception,  and  from  the  panel  the  accused 
may  strike  four,  and  the  remaining  twelve  shall  constitute  the 
jury. 

In  a  felony  case,  where  from  those  summoned  and  in  attend- 
ance a  sufficient  number  of  jurors  cannot  be  had,  a  new  venire 
facias  must  be  directed,  requiring  to  be  summoned  from  the 
bystanders,  or  from  a  list  to  be  furnished  by  the  court,  as  many 
persons  as  may  be  deemed  necessary. 

Omission  to  direct  a  new  venire  facias,  or  omission  of  any 
statutory  essential  apparent  on  the  face  of  the  record,  is  error, 
and  may  be  taken  advantage  of  after  the  verdict  by  motion  in 
arrest  of  judgment,  failure  of  the  accused  to  make  the  objection 
before  the  jury  is  sworn  being  no  waiver. 

Cluverius's  Case,  81  Va.,  787,  decided  May  6,  1886,  it  was 
held :  It  is  not  error  in  the  trial  court  to  discharge  a  venireman 
who  had  previously  expressed  opinioDS  repugnant  to  inflicting 
capital  punishment  on  circumstantial  evidence,  or  who  had 
made  a  bet  on  the  result  of  the  trial. 

HalVs  Case,  80  Va.,  555,  approved  as  to  mode  of  selecting  a 
jury. 

Section  4024. 

The  reference  to  7  Grat.,  673,  is  an  error.  See  Dowdy's  Case, 
9  Grat.,  727,  cited  ante,  Section  4018;  see  Wormley's  Case,  10 
Grat.,  658  and  672,  cited  ante.  Section  4020. 

In  ChaTworis  Case,  21  Grat.,  822,  decided  November,  1871,  it 


Citations  to  the  Code  of  Virginia.  1073^ 

"was  held :  The  court  before  which  a  prisoner  is  arraigned  for 
trial,  if  qualified  jurors  not  exempt  from  serving  cannot  be  con- 
veniently found  in  the  county  or  corporation,  may  send  to  an- 
other county  or  corporation  for  such  jurors ;  and  in  acting  ia 
such  a  case  the  court  must  have  a  large  discretion. 

See  Sands' s  Case,  21  Grat.,  871,  cited  ante,  Section  4018. 

In  Craft's  Case,  24  Grat.,  602,  decided  November,  1873,  it  was. 
held :  In  directing  jurors  to  be  summoned  from  another  county, 
the  court  may  make  an  order  directing  its  officer  to  summon 
them,  or  may  direct  the  clerk  to  issue  a  venire  facias  requiring 
the  ofiicer  to  summon  them. 

A  corporation  court  has  authority  to  direct  jurors  to  be  sum- 
moned from  without  the  limits  of  the  corporation  for  the  trial 
of  a  prisoner  indicted  in  that  court,  when  an  impartial  jury  can- 
not be  obtained  within  the  corporation. 

In  the  sense  of  the  law  all  parts  of  the  adjoining  county  out- 
side of  the  limits  of  the  corporation  are  remote  from  the  place 
where  the  offence  is  alleged  to  have  been  committed,  if  it  is  al- 
leged to  have  been  committed  within  the  limits  of  the  corpora- 
tion. Where  jurors  are  directed  to  be  summoned  from  an  ad- 
joining county,  and  it  appeared  that  one  of  the  panel  had  been 
summoned  by  mistake  or  misapprehension  of  the  law  or  otherwise 
from  a  place  near  to  instead  of  remote  from  the  vicinage,  the 
objection,  if  vaKd,  instead  of  being  made  to  the  array  of  jurors, 
should  be  made  to  the  individual  juror  summoned. 

See  Page's  Case,  27  Grat.,  954,  cited  ante,  Section  3894;  see 
Clarke's  Case,  18  S.  E.  Rep.,  440,  cited  aiite.  Section  4018. 

Section  4025. 

In  Bennett's  Case,  8  Leigh,  745,  decided  by  the  General  Court, 
December,  1837,  it  was  held:  The  sheriff  is  ex-officio  bound  to 
keep  the  jury  when  adjourned  in  a  criminal  cause,  and  it  is  not 
indispensably  necessary  that  he  should  be  sworn,  but  if  it  were 
necessary  to  swear  him,  it  would  be  presumed  that  he  was  swom,^ 
in  a  case  where  the  record  does  not  show  the  contrary. 

In  McCarter's  Case,  11  Leigh,  633,  decided  by  the  General 
Court,  June,  1841.  Upon  trial  of  indictment  for  murder  the 
jury  not  agreeing  on  a  verdict,  are,  after  dark,  adjourned  over 
tin  next  morning,  and  committed  to  two  sherifis  to  be  inclosed 
in  a  room  to  be  prepared  for  them ;  in  conducting  them  from  the 
courthouse  to  their  room,  one  juror  separates  from  his  fellows, 
gets  twenty-five  yards  from  them  and  the  sheriffs  having  them 
in  charges  tells  a  servant  whom  he  meets  to  take  care  of  his 
horse,  say  nothing  else  to  any  one,  and  no  one  speaks  to  him; 
he  is  immediately  pursued  by  one  of  the  sheriffs  and  brought 
back  to  the  rest  of  the  jury,  his  separation  does  not  exceed  a 
minute,  and  he  was  a  yet  shorter  time  out  of  sight  of  the  sheriffs. 

68 


1074  Citations  to  the  Code  of  Virginia. 

Next  morning  the  juiy  finds  the  prisoner  guilty  of  murder  in 
the  first  degree  and  court  passed  sentence  of  death.  Held: 
Such  separation  of  the  juror  from  his  fellows  is  no  cause  for 
setting  aside  the  verdict. 

In  TooeVs  Case,  11  Leigh,  714,  decided  by  the  General  Court, 
December,  1841,  it  was  held:  In  impaneling  for  trial  of  an  in- 
dictment for  felony,  there  is  no  necessity  to  keep  the  jurymen 
who  have  been  elected  and  sworn  together  and  separate  from 
other  persons,  under  charge  of  the  sheriff,  until  the  whole  num- 
ber shall  be  elected  and  sworn. 

In  impaneling  a  jury  for  trial  of  an  indictment  for  felony, 
eight  are  elected  and  sworn,  and  three  elected  but  not  sworn; 
one  who  has  been  sworn  separates  from  the  rest,  goes  some 
-miles  off  and  stays  some  hours ;  the  other  ten  are  put  in  charge 
of  the  sheriff,  to  be  kept  together  and  separate  from  other  per- 
sons till  ensuing  morning;  upon  attachment  against  the  ab- 
sconding juror,  he  is  taken  the  same  night  and  put  and  kept  in 
the  same  room  with  the  other  jurymen  till  next  morning,  but 
there  appears  to  have  been  no  conversation  on  the  subject  of 
the  prosecution ;  next  morning,  by  allowance  of  the  court,  this 
juryman  is  challenged  by  the  prisoner  for  cause,  and  set  aside ; 
the  jury  is  then  completed,  and  find  the  prisoner  guilty.  Held : 
The  separation  of  the  absconding  juror  from  his  fellows,  and 
his  subsequent  association  with  them,  though  he  was  afterwards 
struck  from  the  panel,  does  not  vitiate  the  verdict,  and  is  no 
good  reason  for  a  new  trial. 

After  a  juryman  has  been  elected  and  sworn,  the  court  may, 
in  its  discretion,  allow  the  prisoner  to  challenge  him  for  cause, 
and  strike  him  from  the  panel. 

In  Williams's  Case,  2  Grat.,  567,  decided  December,  1845,  it 
was  held,  by  the  General  Court :  On  a  trial  for  felony,  the  court 
has  no  authority  to  discharge  the  jury  without  the  consent  of 
the  prisoner,  merely  because  the  court  is  of  opinion  that  the 
jury  will  not  be  able  to  agree.  There  must  be  a  necessity  for 
the  discharge  of  the  jury  to  authorize  it.  If  the  court  impro- 
perly discharge  the  jury  without  the  consent  of  the  prisoner,  he 
is  entitled  to  be  discharged  from  the  prosecution. 

The  practice  of  finally  adjourning  the  court,  Mathont  noticing 
the  jury,  whereby  it  is  discharged  by  operation  of  law,  or  of 
discharging  them  simultaneously  with  the  final  adjournment  of 
the  court,  approved. 

In  Thompson's  Case,,  8  Grat.,  637,  decided  December,  1851, 
by  the  General  Court:  A  juror  called  by  the  prisoner  as  a  wit- 
ness, states  that  on  a  certain  morning  during  the  progress  of 
the  trial,  before  the  rest  of  the  jury  had  risen,  he  rose,  dressed 
himself  and  went  down  stairs  to  the  pavement  before  the  door 
of  the  hotel  where  the  jury  were  lodged  for  the  night,  for  the 


Citations  to  the  Code  of  Virginia.  1075 

purpose  of  meeting  with  a  passer-by  to  send  a  message  to  his 
family,  and  after  remaining  there  about  five  minutes  and  seeing 
no  one  passing,  he  returned  to  the  rest  of  the  jury.  Held :  That 
the  only  proof  of  separation  of  the  jury  being  that  of  the  juror, 
the  prisoner's  witness,  who  negatives  all  abuse,  tampering  or 
improper  influence,  the  act  of  the  juror  is  not  sufficient  grounds 
for  setting  aside  the  verdict  and  granting  a  new  trial. 

In  the  progress  of  a  trial  which  lasts  several  days,  upon  the 
adjournment  of  the  court  at  night  the  jury  are  committed  to  the 
sheriff  to  be  kept  until  next  day.  The  most  convenient  and 
suitable  accommodation  which  can  be  provided  for  the  jury  is 
in  the  third  story  of  a  large  hotel,  where  they  are  placed  in  five 
different  rooms  opening  upon  a  common  passage  which  com- 
municates with  the  street  below  by  flights  of  stairs,  the  doors 
of  their  chambers  being  unlocked  during  the  night,  the  jurors 
being  unwilling  to  have  them  locked  from  apprehension  of  fire 
during  the  night,  and  there  being  no  doors  or  other  fastenings 
at  either  ends  of  the  passage.  Held :  This  is  not  a  separation 
of  the  jury  for  which  the  prisoner  is  entitled  to  a  new  trial. 

In  the  morning  before  the  court  meets,  the  jury  are  walking 
out,  accompanied  by  the  sheriff,  for  relaxation  and  exercise, 
and  pass  the  boundary  line  separating  the  county  in  which  the 
trial  is  progressing  from  an  adjoining  county,  and  remain  in  the 
adjoining  county  a  few  minutes,  but  there  is  no  separation  or 
communication  with  any  one  by  any  of  the  jurors.  Held :  This 
is  not  a  separation  of  the  jury,  and  the  prisoner  is  not  entitled 
to  a  new  trial, 

A  jury  in  a  criminal  trial  concur  in  opinion  as  to  the  guilt  of 
the  prisoner,  but  differ  as  to  the  length  of  time  for  which  he 
should  be  sentenced  to  the  penitentiary;  and  they  agree  that 
each  one  shall  state  the  time  for  which  he  will  send  him  to  the 
penitentiary,  and  that  the  aggregate  of  these  periods,  divided 
by  twelve,  shall  be  the  verdict.  After  it  is  done  they  strike  off 
the  odd  months,  and  all  agree  to  the  verdict,  understanding 
what  it  is.  Held  :  This  is  not  misbehavior  in  the  jury  for  which 
the  verdict  will  be  set  aside  and  a  new  trial  awarded. 

Is  is  not  misbehavior  in  a  juror  between  the  adjournment  of 
the  court  in  the  evening  and  its  meeting^  next  morning  to  drink 
spirituous  liquors  in  moderation. 

A  medical  witness  for  the  Commonwealth  being  accidentally 
present  at  the  hotel  when  the  jury  are  brought  there  by  the 
sheriff  to  be  lodged  for  the  night,  invites  the  jury,  in  the 
presence  of  the  sheriff,  to  drink  with  him,  and  some  of  them 
accept  the  invitation.  The  act  was  inadvertent,  but  intended 
only  as  an  act  of  courtesy,  and  it  was  all  in  the  presence  of  the 
sheriff.  This  is  not  sufficient  to  set  aside  the  verdict  and  award 
a  new  trial. 


1076  Citations  to  the  Code  op  Virginia. 

In  TrirrCs  Case,  18  Grat.,  983,  decided  January,  1868,  it  was 
held :  On  a  trial  for  murder,  during  a  recess,  the  jury  is  com- 
mitted to  the  keeping  of  the  high-sheriff,  who  is  sworn  to  keep 
them,  but  his  deputy  is  not  sworn.  The  high- sheriff  goes  out 
with  a  part  of  the  jnry,  leaving  the  others  in  the  jury-room  with 
the  deputy,  and  with  the  door  locked  or  closed.  This  is  not 
misconduct  of  the  jury  which  will  entitle  the  prisoner  to  a  new 
trial. 

In  Phillips's  Case,  19  Grat.,  485,  decided  November  4,  1868, 
it  was  held:  The  authority  of  a  judge,  who  presides  at  a  crimi- 
nal trial,  extends  over  the  jury  not  only  during  the  day  while 
they  are  in  court,  but  after  the  adjournment  for  the  day;  and  it 
is  not  illegal  or  improper  for  the  judge  to  take  charge  of  a 
juror  in  the  temporary  absence  of  the  sheriff  to  whom  the  jury 
has  been  committed. 

Separation  of  a  juror  out  of  the  custody  and  control  of  the 
ofl&cers  having  charge  of  the  jury,  is  prima  facie  sufficient  to 
vitiate  the  verdict ;  and  it  is  incumbent  on  the  Commonwealth 
to  refute  that  presumption  by  disproving  all  probabilities  or  sus- 
picions of  tampering. 

In  Bead's  Case,  22  Grat.,  924,  decided  December  11,  1872,  it 
was  held :  On  the  trial  of  a  prisoner  for  a  felony,  which  lasts 
several  days,  the  sheriffs  are  sworn  to  keep  the  jury  and  not 
allow  them  to  be  spoken  to,  or  to  speak  to  them  themselves  in 
relation  to  the  case.  In  the  progress  of  the  trial  one  of  the 
deputies  is  called  by  the  Commonwealth,  and  gives  evidence  of 
a  fact  which  had  occurred  in  his  presence,  and  the  same  fact 
had  been  proven  by  other  witnesses.  This  is  not  sufficient 
ground  for  setting  aside  the  verdict. 

In  Jones's  Case,  31  Grat.,  830,  decided  November,  1878,  it  was 
held :  The  statute  having  dispensed  with  the  necessity  of  keep- 
ing the  jury  together  in  prosecutions  where  the  penalty  cannot 
be  death  or  confinement  in  the  penitentiary  for  ten  years  if  the 
jury  in  prosecution  for  malicious  stabbing,  etc.,  with  intent  to 
kill,  etc.,  find  the  prisoner  guilty  of  unlawful  cutting  with  intent, 
etc.  Upon  a  motion  to  set  aside  the  verdict  and  grant  a  new 
trial  on  the  ground  of  the  separation  of  the  jury  before  the  ver- 
dict was  rendered,  the  court  is  not  bound  to  set  aside  the  ver- 
dict for  that  cause,  if  it  approved  the  verdict  and  is  satisfied 
it  is  fairly  and  honestly  rendered,  and  that  neither  the  Common- 
wealth nor  the  prisoner  had  been  damnified  by  the  separation. 

Upon  a  motion  to  set  aside  the  verdict  on  the  ground  of  the 
separation  of  the  jury,  the  prisoner  must  prove  the  separation 
by  affidavits  or  proof  in  court,  and  the  offer  to  prove,  which  the 
court  refuses  under  the  circumstances  to  hear,  is  not  sufficient 
to  enable  the  appellate  court  to  act  on  the  question.  The  ex- 
ception should  show  the  proof. 


Citations  to  the  Code  of  Vieginia.  1077 

In  Jones's  Case,  79  Va.,  213,  decided  July  24,  1884,  it  was 
held :  Where  the  offence  tried  is  not  punishable  with  death  or 
ten  years  confinement  in  the  penitentiary,  an  objection  that  the 
jury  was  allowed  to  separate  has  no  merit,  though  the  court  may 
have  ordered  that  they  be  boarded  at  a  hotel  during  the  trial. 

Section  4026. 

In  FelVs  Case,  9  Leigh,  613,  decided  by  the  General  Court, 
June,  1838,  it  was  held:  In  any  criminal  case,  whether  capital 
or  other,  the  court  has  power  for  good  cause  to  discharge  the 
jury  and  put  the  accused  upon  his  trial  before  a  new  jury. 

Such  power  held  to  have  been  properly  exercised  in  a  capital 
oase  where  the  jury  had  been  kept  together  for  nine  days  with- 
out agreeing  on  a  verdict,  and  the  health  of  one  Of  the  jurors 
was  suffering  from  confinement,  while  the  personal  attentions  of 
another  juror  were  required  by  the  situation  of  his  wife. 

Williams's  Case,  2  Grat,,  567,  is  given  supi^a.  Section  4025. 

In  Dye's  Case,  7  Grat.,  662,  decided  June,  1851,  by  the 
General  Court,  it  was  held :  If  it  does  not  appear  on  the  record 
that  the  defendant  objected,  it  will  be  presumed  in  the  appel- 
late court  that  the  court  below  discharged  the  jury  impaneled 
and  sworn  in  the  case  for  sufficient  cause,  and  with  the  consent 
or  acquiescence  of  the  defendant.  In  cases  of  misdemeanor, 
the  court  has  authority  to  discharge  without  or  against  the  con- 
sent of  the  defendant. 

The  reference  to  32  Grat.,  872,  is  to  a  case  in  which  the  stat- 
ute is  not  construed,  but  only  quoted  as  a  final  disposition  of 
-questions  raised. 

Section  4027. 

In  Mc  WJdrt's  Case,  3  Grat.,  594,  decided  June,  1846,  by  the 
General  Court,  it  was  held :  Where  several  persons  are  pro- 
ceeded against  jointly  for  a  felony  before  an  examining  court, 
and  are  sent  on  to  the  superior  court  for  trial,  the  clerk  of  the 
county  court  should  issue  a  separate  venire  facias  for  summon- 
ing a  venire  for  the  trial  of  each  of  them  separately.    Hence  the 

statute.  ,      ^  J 

The  reference  to  18  Grat.,  981,  does  not  apply  to  the  Code 
of  1887 ;  it  was  a  construction  of  a  previous  act. 

In  Jones's  Case,  31  Grat.,  836,  decided  November  14,  1878, 
it  was  held :  Where  two  persons  are  indicted  jointly  for  con- 
spiracy to  prosecute  another  for  larceny,  neither  of  them  is  en- 
titled to  a  separate  trial. 

In  such  case,  both  the  defendants  having  been  found  guilty, 
one  of  them  applies  for  a  new  trial,  which  is  overruled,  and  he 
obtains  a  writ  of  en-or.  The  other  does  not  apply  for  a  new 
.trial,  and  there  is  a  judgment  against  him.     The  judgment  may 


1078  Citations  to  the  Code  of  Virginia. 

be  reversed  as  to  the  one  who  appeals,  without  reversing  the- 
judgment  against  the  other,  who  did  not  apply  for  a  new  trial. 

Section  4028. 
The  reference  to  7  Grat.,  619,  is  an  error. 

Section  4029. 

Bee  McWhirfs  Case,  3  Grat.,  594,  cited  ante,  Section  4027; 
see  Currans  Case,  7  Grat.,  619,  cited  aiite.  Section  4028. 

The  reference  to  18  Grat.,  981,  does  not  apply  to  the  Code  of 
1887 ;  it  was  a  construction  of  a  previous  act. 

In  Lewis  and  Divinney's  Case,  25  Grat.,  938,  decided  De- 
cember 10,  1874,  it  was  held :  Where  two  persons  have  been 
indicted  jointly  for  a  misdemeanor,  they  cannot  claim  any  right 
to  be  tried  separately. 

Section  4036. 

In  Vance's  Case,  2  Ya.  Cases,  162,  decided  by  the  General 
Court,  June,  1819,  it  was  held :  The  venue  being  changed  from 
the  county  of  R.  to  that  of  W.,  a  plea  that  the  murder  was  com- 
mitted in  R.,  and  that,  therefore,  the  court  of  W.  has  no  juris- 
diction, is  bad  on  demurrer.  Nor  can  the  array  of  the  jury  be 
challenged  because  they  were  summoned  by  the  sheriff  of  W. 

A  prisoner  having  been  arraigned,  and  having  pleaded  in  the 
county  in  which  the  offence  was  committed,  need  not  be  ar- 
raigned, nor  be  required  to  plead,  in  the  county  to  which  the 
venue  is  changed. 

In  the  case  of  Boswell  vs.  FLockheart^  8  Leigh,  364,  decided 
May,  1837,  it  was  held :  An  application  by  a  defendant  for  a 
change  of  venue,  on  the  ground  of  general  prejudices  existing 
against  him  in  the  town  where  the  cause  is  to  be  tried,  should 
be  supported  by  the  affidavits  of  disinterested  individuals. 

See  Wormley's  Case,  10  Grat.,  658,  cited  ante,  Section  4020. 

In  Wrights  Case,  33  Grat.,  880,  decided  July,  1880.  Upon 
an  application  of  the  prisoner  to  change  the  venue,  upon  the 
ground  that  an  impartial  jury  cannot  be  had  in  the  county,  the 
application  is  refused,  and  a  jury  is  obtained  in  the  county. 
Held :  If  the  prisoner  feared  that  he  could  not  get  an  impartial 
jury  in  the  county,  he  should  first  have  asked  that  the  jurors 
should  be  sent  for  from  another  county;  and  he  not  having  done 
this,  and  an  impartial  jury  having  been,  in  fact,  obtained,  the 
appellate  court  will  not  set  aside  a  verdict  for  the  refusal  of  the 
court  to  change  the  venue. 

See  Joyce's  Case,  78  Va.,  287,  cited  ante.  Section  4016. 

Section  4037. 
In  Vance's  Case,  2  Va.  Cases,  162,  decided  by  the  General 


Citations  to  the  Code  of  Virginu.  1070 

Court,  June,  1819 :  It  was  held :  If  a  prisoner  has  been  tried 
and  convicted  of  a  crime,  and  a  new  trial  awarded  to  him,  al- 
though he  should  not  be  again  tried  till  after  the  third  term 
(subsequent  to  his  examination)  he  is  not  entitled  to  a  discharge. 

Section  4038. 

In  Vance  s  Case,  2  Va.  Cases,  162,  decided  June,  1819,  by  the 
General  Court,  it  was  held :  This  section  does  not  require  the 
clerk  to  certify  of  the  record  of  the  examining  court. 

Section  4039. 

In  the  case  of  Bomell  vs.  Flockheart,  8  Leigh,  364,  decided 
May,  1837,  it  was  held :  When  a  judge  of  the  circuit  court  is  so 
situated  to  render  it  improper  in  his  judgment  for  him  to  pre- 
side at  the  trial  of  a  cause,  the  statute  makes  it  lawful  for  him 
to  remove  the  cause  to  another  circuit.  In  such  case,  however, 
the  propriety  of  removing  or  refusing  to  remove  depends  upon 
the  selfconsciousness  of  the  judge,  and  an  appellate  court  can- 
not revise  his  decision. 

Section  4040. 

In  Kirk"s  Case,  9  Leigh,  627,  decided  by  the  General  Court, 
December,  1838,  it  was  held :  Where  a  verdict  finds  a  prisoner 
guilty  upon  some  of  the  counts  in  an  indictment,  saying  no- 
thing of  others,  judgment  of  acquittal  should  be  entered  upon 
those  counts  of  which  the  verdict  takes  no  notice. 

In  Hardy  <&  Curry  s  Case,  17  Grat.,  592,  decided  January  26, 
1867,  it  was  held,  pp.  599  and  615 :  When  assault  is  a  necessary 
ingredient  of  a  felony  charged,  the  prisoner  may  be  acquitted 
of  the  felony  and  convicted  of  the  assault. 

See  Cajiadas  Case,  22  Grat.,  899,  cited  ante.  Section  3671. 

In  Page's  Case,  26  Grat.,  943,  decided  April  1,  1875,  it  was 
held :  An  indictment  for  felony  contains  three  counts,  and  on 
the  trial  of  the  prisoner  he  is  found  guilty  on  the  third  count. 
He  is  entitled  to  a  judgment  of  acquittal  on  the  first  and  second 

^'^'in  %xiarfs  Case,  28  Grat.,  950,  decided  July  26,  1877,  it  was 
held  •  It  is  settled  law  in  this  State  that  where  there  are  several 
counts  in  an  indictment,  and  the  jury  find  the  accused  guilty 
upon  one  of  the  counts,  saying  nothing  as  to  the  others  tne 
verdict  operates  as  an  acquittal  upon  the  counts  of  which  the 
verdict  takes  no  notice,  and  the  court  should  enter  a  judgment 

accordincrlv 

In  such  a  case  if  the  accused  applies  for  and  obtains  a  new 
trial  he  does  not  thereby  waive  the  advantage  of  the  acquittal 
thus  obtained ;  but  he  must  be  tried,  and  can  only  be  tried  again 


1080  Citations  to  the  Code  of  Virginia. 

on  the  count  on  whicli  he  was  convicted,  and  not  on  the  counts 
on  which  he  has  been  before  acquitted ;  and  the  rule  is  the  same 
whether  the  new  trial  is  granted  because  the  verdict  is  contrary 
to  the  evidence,  or  because  the  verdict  is  so  defective  or  uncer- 
tain, that  legally  no  judgment  can  be  pronounced  thereon. 

In  Briggs's  Case,  82  Va.,  554,  decided  November  18,  1886,  it 
'was  held :  So  much  of  this  section  as  declares  that,  "  If  a  ver- 
dict be  set  aside  on  the  motion  of  the  accused  and  a  new  trial 
'be  awarded,  on  such  new  trial  the  accused  shall  be  tried,  and 
such  verdict  may  be  found  and  sentence  pronounced  as  if  a 
former  verdict  had  not  been  found,"  is  not  unconstitutional. 

On  indictment  for  murder  at  first  trial  accused  is  convicted  of 
murder  in  the  second  degree,  and  gets  verdict  set  aside,  at  the 
second  trial  he  pleads  that  he  has  been  before  acquitted  of 
murder  in  the  first  degree  by  virtue  of  his  conviction  of  murder 
in  the  second  degree,  and  moves  that  the  jury  be  instructed  to 
exclude  a  finding  of  murder  in  the  first  degree.  It  is  not  error 
to  reject  the  plea  nor  to  deny  the  instruction. 

This  is  the  case  cited  from  11  Va.  Law  Journal,  139. 

In  Prather's  Case,  85  Va.,  122,  decided  July  19,  1888,  it  was 
held :  On  motion  to  set  aside  a  verdict  of  conviction  and  award 
a  new  trial  in  a  criminal  case,  the  sole  question  is,  is  the  verdict 
plainly  insufficient  to  support  the  verdict? 

In  Muscoe^s  Case,  86  Va.,  443,  decided  January  9,  1890,  it 
■was  held:  The  accused  is  entitled  to  a  full  and  correct  state- 
ment of  the  law  applicable  to  the  evidence  in  his  case,  and  any 
misdirection  by  the  court  in  point  of  law  on  matters  material  to 
ihe  issue,  is  ground  for  a  new  trial. 

Section  4041. 
Reference  to  2  Va.  cases,  210,  is  error. 

Section  4042. 

Livingstone's  Case,  14  Grat.,  592,  is  a  query  as  to  whether,  on 
indictment  for  murder,  verdict  of  manslaughter  on  second  trial, 
a  verdict  of  higher  grade  than  manslaughter  may  be  entered; 
since  decided  that  it  can  not. 

See  Hardy  (&  Curry's  Case,  17  Grat.,  592,  cited  ante.  Section 
3674 ;  see  Canada's  Case,  22  Grat.,  899,  cited  ante,  Section 
3671 ;  see  Ilohack's  Case,  28  Grat.,  922,  cited  ante.  Section 
3671. 

Section  4043. 

See  Poindexter's  Case,  6  Rand.,  667,  cited  ante.  Section  3707. 
The  reference  here  given  to  1  Leigh,  626,  is  an  error,  as  1 
Leigh  has  not  that  number  of  pages. 


Citations  to  the  Code  of  Virginia.  1081 

Section  4044. 

See  Hardy  &  Curry's  Case,  17  Grat.,  592,  cited  ante.  Section 
3674. 

In  Glover's  Case,  86  Va.,  382,  decided  November  21,  1889,  it 
was  held:  Refusal  to  instruct  jury  that,  if  they  believe  from 
the  evidence  that  prisoner  intended  to  commit  a  felony,  but  be- 
fore committing  it  voluntarily  abandoned  it,  they  were  to  find 
him  not  guilty,  and  instructing  them  that  on  an  indictment  for 
felony  prisoner  might  be  found  guilty  of  an  attempt  to  com- 
mit a  felony.     Held :  Not  error. 

Section  4045. 

See  Kirk's  Case,  9  Leigh,  627,  cited  ante,  4040. 

In  Pages  Case,  9  Leigh,  683,  decided  by  the  General  Court, 
December,  1839.  An  indictment  (described  in  the  record  of 
the  finding  and  in  the  entry  of  the  arraignment  as  an  indict- 
ment for  forgery)  contains :  First,  a  count  for  forging  and  coun- 
terfeiting a  note ;  and  second,  a  count  for  feloniously  using  and 
employing  as  true  a  counterfeit  note.  Verdict  finds  the  prisoner 
guilty  of  forgery,  as  alleged  in  the  indictment.  Held :  An  ac- 
quittal must  be  entered  on  the  second  count. 

In  Mowhrays  Case,  11  Leigh,  643,  decided  June,  1841,  by  the 
General  Court,  it  was  held:  The  rule  of  practice  in  criminal 
cases,  that  if  an  indictment  contain  several  counts,  some  good 
and  others  faulty,  and  a  general  verdict  of  guilty  be  found,  the 
bad  counts  will  not  affect  the  validity  of  the  good,  and  judgment 
will  be  given  on  those  which  are  good,  is  not  appUcable  to  cases 
of  penitentiary  crimes  in  Virginia,  where  the  jury  is  to  ascertain 
the  term  of  imprisonment,  since  the  evidence  on  the  bad  counts 
may  aggravate  the  punishment  imposed  by  the  verdict. 

In  Clere's  Case,  3  Grat.,  615,  decided  December,  1846,  by  the 
General  Court.  An  examining  court  sends  on  a  prisoner  to  the 
superior  court  to  be  tried  for  the  larceny  of  a  slave.  The  in- 
dictment against  him  in  the  superior  court  is  not  only  for  the 
larceny,  but  for  carrying  the  slave  from  one  county  to  another, 
without  the  master's  consent,  and  with  intent  to  defraud  him; 
and  also  for  aiding  and  enticing  the  slave  to  abscond.     Held: 

It  is  error.  ,  .  ,    ,, 

If  the  indictment  includes  offences  for  which  the  prisoner 
has  not  been  tried  and  sent  on  by  the  examining  court  for  far- 
ther trial,  it  is  error,  and  the  court  should,  upon  the  motion  of 
the  prisoner,  quash  the  counts  of  the  indictment  which  charge 

these  offences.  ,   .     i,      ■    v  i.        i. 

The  common-law  rule,  that  a  good  count  m  the  indictment, 
where  the  other  counts  are  bad,  will  support  a  general  verdict 
of  guilty,  is  overruled  in  Virginia  as  to  offences  which  are  pun- 
ishable by  confinement  in  the  penitentiary. 


1082  Citations  to  the  Code  of  Virginia. 

In  Shifflefs  Case,  14  Grat.,  652,  decided  March  9,  1858,  it 
was  held,  p.  672 :  If  it  appears  from  the  record  returned  with 
the  certiorari  that  the  prisoner  had  appeared,  and  that  the  court 
had,  on  his  motion,  quashed  one  of  the  counts  in  the  indictment, 
though  on  his  trial  he  pleaded  to  the  whole  indictment,  and  was 
tried  on  the  count  which  was  quashed  as  well  as  on  the  others, 
yet  this  is  not  cause  for  reversing  the  judgment. 

See  Canada's  Case,  22  Grat,,  899,  cited  ante.  Section  3671. 
See  Page's  Case,  26  Grat.,  943,  cited  ante.  Section  4040.  See 
Stuart's  Case,  28  Grat.,  950,  cited  a7ite.  Section  4040. 

In  Richards's  Case,  81  Ya.,  110,  decided  November  19,  1885, 
it  was  held :  When  of  two  counts  the  second  is  bad,  but  jury 
finds  a  general  verdict  of  guilty,  and  fixes  a  punishment  that 
should  not  be  fixed  under  the  first  count,  the  verdict  must  be  set 
aside,  and  a  new  trial  awarded.  Accused  is  entitle  to  acquittal 
under  the  first  count,  as  the  verdict  must  have  been  under  the 
second. 

Section  4046. 

In  Kemp's  Case^  18  Grat.,  969,  decided  January,  1868,  it  was 
held:  Several  prisoners  having  been  tried  together  for  the  same 
felony,  and  found  guilty,  the  court  may  grant  a  new  trial  to  one 
of  them,  and  render  a  judgment  against  the  others. 

In  Jones's  Case,  31  Grat.,  836,  decided  November  14,  1878,  it 
was  held :  On  an  indictment  for  conspiracy  the  jury  cannot  find 
either  party  guilty  unless  they  believe  from  the  evidence  that 
there  was  an  agreement  of  mind  between  the  two  to  do  and 
perform  the  matters  and  things  as  charged  in  the  indictment. 

Section  4047. 

See  Vance's  Case,  2  Va.  Cases,  162,  cited  ante.  Section  3737. 

In  Ex-parte  Santee,  2  Va.  Cases,  363,  decided  by  the  General 
Court,  November,  1823,  it  was  held:  The  word  "term"  ought  to 
be  construed  to  mean  not  the  stated  time  when  a  court  should 
meet,  but  the  actual  sessions  of  the  court. 

In  Cawood^s  Case,  2  Va.  Cases,  527  (erroneous  reference  to  546), 
decided  by  the  General  Court,  June,  1826,  it  was  held :  If  after 
the  prisoner  has  been  examined  by  the  county  court  for  an 
offence,  two  actual  sessions  of  a  superior  court  thereafter  occur, 
and  it  does  not  appear  from  the  records  of  the  superior  court 
that  an  indictment  has  been  found  against  him,  he  is  entitled 
under  our  statute  to  be  discharged  from  imprisonment,  although 
he  has  been  in  fact  arraigned  on  and  has  pleaded  to  an  indict- 
ment not  appearing  by  the  record  to  have  been  found  by  the 
grand  jury,  and  if  a  third  actual  term  has  passed  without  such 
record  of  the  finding,  he  is  entitled  under  the  statute  to  be  dis- 
charged from  the  crime. 


Citations  to  the  Code  of  Virginia.  lOSS 

In  Ch-een's  Case,  1  Kob.,  736  (2d  edition,  791),  decided  by  the^ 
General  Court.  A  prisoner  charged  with  felony  being  indicted 
at  the  term  of  the  circuit  court  after  his  examination,  the  case 
is  continued  at  that  term  for  the  want  of  time  to  try  it.  At  the 
second  term  the  case  is  continued  on  the  motion  of  the  prisoner 
upon  the  ground  of  the  absence  of  a  material  witness  for  him. 
At  each  of  the  three  succeeding  terms  the  case  is  again  continued 
for  the  want  of  time  to  try  it.  Held :  That  upon  the  expiration 
of  the  last  of  the  five  terms,  the  prisoner  became  entitled  under 
the  statute  to  be  forever  discharged  of  the  crime  imputed  to 
him. 

In  BeWs  Case,  8  Grat.,  600,  decided  December,  1851,  by  the 
General  Court,  it  was  held :  A  prisoner  being  sent  on  for  further 
trial  by  an  examining  court  which  sat  during  the  session  of  the 
circuit  court  to  which  he  is  sent  for  further  trial,  that  term  of  the 
circuit  court  is  not  one  of  the  two  at  which  the  statute  directs 
that  he  shall  be  indicted  or  that  he  shall  be  discharged  from 
imprisonment. 

In  Adock's  Case,  8  Grat.,  661,  decided  December,  1851,  by 
the  General  Court.  A  prisoner  is  indicted  for  embezzling  the 
goods  of  W.,  and  at  the  fifth  term  after  he  was  examined  for 
the  offence  he  is  tried  and  convicted,  but  the  verdict  is  set 
aside  for  a  variance  between  the  allegation  and  the  proof  as  to 
the  owTiership  of  the  goods,  and  the  case  is  continued.  At  the 
next  term  of  the  court  the  attorney  for  the  Commonwealth 
enters  a  nolle  prosequi  upon  the  indictment,  and  the  prisoner  is 
indicted  again  for  the  same  offence ;  the  indictment  being  in 
the  first  count  as  in  the  former  indictment,  and  another  count 
charging  the  goods  embezzled  to  be  the  goods  of  A.  Upon  his 
arraignment  he  moves  the  court  to  discharge  him  from  the 
offence,  on  the  ground  that  three  regular  terms  of  the  court  had 
been  held  since  he  was  examined  and  remanded  for  trial  with- 
out his  being  indicted.  The  attorney  for  the  Commonwealth 
opposes  the  motion,  and  offers  the  record  of  the  proceedings  of 
the  circuit  court  upon  the  first  indictment  to  show  that  he  had 
been  indicted,  tried,  and  convicted,  which  was  objected  to  by 
the  prisoner.  Held :  The  record  is  competent,  apd  the  only 
competent  evidence  upon  the  question. 

The  second  indictment  being  for  the  same  act  of  embezzling 
as  the  first,  and  the  prisoner  having  been  indicted,  tried,  and 
convicted  in  time,  and  the  verdict  set  aside  for  the  variance, 
the  second  indictment  was  proper  and  in  time ;  and  the  pnsoner 
is  not  entitled  to  be  discharged. 

The  exceptions  or  excuses  for  failure  to  try  the  pnsoner 
enumerated  in  the  statute,  are  not  intended  to  exclude  others  of 
a  similar  nature,  or  in  purl  ratione,  but  only  that  if  the  Com- 
monwealth  was  in  default  for  three  terms  without  any  of  the 


1084  Citations  to  the  Code  of  Virginia. 

excuses  for  the  failure  enumerated  in  tlie  statute,  or  such 
like  excuses  fairly  implicable  by  the  courts  from  the  reason 
and  spirit  of  the  law,  the  prisoner  should  be  entitled  to  his  dis- 
charge. 

In  Jones's  Case,  19  Grat.,  478,  decided  October  17,  1868.  In 
September,  J.  is  committed  to  be  tried  for  a  felony  at  the  Octo- 
ber term  of  the  county  court,  and  at  that  term  of  the  court  an 
information  is  filed  against  him,  and  he  elects  to  be  tried  in  the 
circuit  court,  and  is  remanded  for  trial  in  that  court.  He  re- 
mains in  jail  until  the  April  term  of  the  court,  1868,  no  indict- 
ment having  been  found  against  him.  The  grand  jury  terms  of 
the  county  court  are  November  and  June.  At  the  April  term 
of  the  circuit  court,  after  the  grand  jury  has  been  discharged, 
he  applies  for  a  writ  of  habeas  corpus  to  obtain  his  discharge. 
Held:  Having  been  committed  for  trial  in  the  county  court, 
that  is  the  court  in  which  he  is  held  to  answer  in  the  sense  of 
the  statute,  though  he  may  have  been  remanded  for  trial  in  the 
circuit  court;  and  he  should  be  indicted  in  the  county  court. 
The  second  term  of  the  court  spoken  of  in  the  statute  is  the 
«econd  term  at  which  a  grand  jury  is  directed  to  be  summoned. 
If  it  was  so  that  the  prisoner  was  held  to  answer  in  the  circuit 
court,  that  would  not  be  until  he  was  remanded  to  that  court; 
and  therefore,  though  the  prisoner  was  committed  for  trial  in 
the  county  court,  before  the  September  term  of  the  circuit 
court,  that  could  not  be  one  of  the  two  terms  spoken  of  by  the 
statute.  And  if  the  November  term  in  the  county  could  be 
connected  with  the  April  term  in  the  circuit  court,  still,  though 
the  grand  jury  at  the  April  term  had  been  discharged  before 
the  application  for  the  writ,  the  judge  might  have  ordered 
another  grand  jury  to  be  summoned  during  the  term,  and 
therefore  the  term  could  not  be  counted  as  one  of  the  terms 
until  it  was  ended. 

In  Sands's  Case,  20  Grat.,  800,  decided  January,  1871,  it  was 
held :  The  three  terms  spoken  of  in  the  act  are  three  terms  after 
that  at  which  the  prisoner  is  first  held  for  trial:  And  though  a 
prisoner  has  been  arrested  and  committed  to  jail,  or  gives  bail 
to  appear,  or  does  appear,  or  is  brought  into  court  on  the  first 
day  of  a  term  of  a  court,  that  term  is  not  to  be  counted  as  one 
of  the  three  terms  aforesaid. 

In  TlalVs  Case,  78  Va.,  678,  decided  March  13,  1884.  H.  was 
examined  before  a  justice  of  the  peace  for  felony.  May  9,  1883, 
and  was  remanded  for  trial  in  the  Hustings  Court  of  D.  That 
court  held  terms  May  10  and  June  4,  1883,  at  both  of  which 
grand  juries  were  impaneled.  But  H.  was  indicted  for  the  said 
felony  not  until  October,  1883.  Failure  to  indict  did  not  arise 
from  any  of  the  causes  excepted  in  the  statute.  To  the  indict- 
ment H.  filed  a  special  plea  in  bar,  which  was  rejected.     On 


Citations  to  the  Code  of  Virginia.  1085 

error,  held:  The  plea  is  good,  and  H.  is  entitled  to  his  dis- 
charge from  imprisonment. 

In  Smith's  Case,  85  Va.,  924,  decided  March  21^  1889.  The 
prisoner  plead  that  he  had  been  held  for  trial  more  than  four 
terms  after  indictment.  Keplication  that  during  that  period 
prisoner  had  been  convicted,  and  the  conviction  reversed;  and 
that  he  had  been  held,  tiU  reversal,  for  punishment,  not  for 
trial.     Held :   Sufficient. 

In  Davis's  Case,  89  Va.,  132,  decided  June  23,  1892,  it  was 
held :  Code,  Section  4047,  providing  that  accused  shall  be  tried 
within  four  terms  of  the  county  court  after  indictment,  is  satis- 
fied by  trial  at  the  fourth  term  after  he  was  indicted. 

CHAPTER  CXCVIII. 

Section  4050, 

In  Crowe's  Case,  1  Va.  Cases,  125,  decided  by  the  General 
Court,  it  was  held:  The  right  of  appeal  does  not  extend  to 
criminal  cases,  or  prosecutions  by  indictment  in  behalf  of  the 
Commonwealth. 

In  Vawter's  Case,  1  Va.  Cases,  127,  decided  by  the  General 
Court,  it  was  held :  No  appeal  or  writ  of  mpersedeas  is  grant- 
able  in  any  case  wherein  the  Commonwealth  is  plaintiff  upon 
a  penal  statute  which  is  considered  in  the  nature  of  a  criminal 
prosecution. 

In  Temple's  Case,  1  Va.  Cases,  163,  decided  by  the  General 
Court,  it  was  held :  No  judgment  of  an  inferior  court  on  a  pre- 
sentment for  a  misdemeanor  can  be  reviewed  and  reversed  by  a 
superior  court  either  upon  appeal  or  supersedeas,  the  common- 
law  writ  of  error  being  the  only  way  in  which  such  judgments 
can  be  reviewed  and  reversed,  which  writ  of  error  may  issue 
without  any  regard  to  the  costs,  or  the  value  of  the  judgment, 
and  without  the  assent  of  the  attorney  for  the  Commonwealth. 

See  Page  vs.  Clopton,  30  Grat.,  415,  cited  ante,  Section  3385. 

Section  4052. 

In  Harrison's  Case,  2  Va.  Cases,  202,  decided  by  the  General 
Court,  it  was  held:  No  writ  of  error  Ues  for  the  Commonwealth 
in  a  gaming  or  any  other  criminal  case.  .^    ,  ,  ,     .qok 

In  Whitens.  King  <&  McCall,  5  Leigh,  726, decided  July,  1835, 
it  was  held:  An  act  of  assembly  empowers  a  county  court  to 
issue  a  writ  of  nd  quod  damnnm,  and  to  give  leave  to  an  indi- 
vidual  to  make  a  dam  across  a  river  which  is  a  public  highway, 
as  if  it  was  not  a  public  highway,  provided  he  shall  not  be  en- 
titled  to  the  benefit  of  the  act  unless  he  make  in  his  dam  and 
keep  in  repair  a  lock  or  slope  for  the  passage  of  fish,  boats,  etc., 
and  the  act  constitutes  the  county  court  judge  of  the  sufficiency 


1086  Citations  to  the  Code  of  Virginia. 

of  the  lock  or  slope,  with  power  to  abate  the  dam  as  a  nuisance, 
if,  after  three  months  notice,  entered  of  record,  the  lock  or  slope 
shall  in  its  opinion  be  insufficient ;  the  dam  is  erected  by  leave 
of  the  court,  notice  is  given  by  two  individuals  and  entered  of 
record  of  a  motion  to  abate  the  dam  as  a  nuisance,  because 
raised  higher  than  authorized,  and  because  of  no  sufficient  lock 
or  slope,  and  on  that  motion  the  county  court  orders  the  dam  to 
be  abated  as  a  nuisance,  and  the  circuit  superior  court  affij-ms 
the  order.  Held :  This  is  a  criminal  prosecution,  and  a  writ  of 
error  lies  from  this  court  to  the  order  of  the  circuit  court  affirm- 
ing the  order  of  the  county  court. 

In  Abraham! s  Case,  11  Leigh,  675,  decided  by  the  General 
Court,  December,  1841,  it  was  held :  The  General  Court  has  no 
jurisdiction  to  award  a  writ  of  error  to  a  refusal  of  a  judge  of  a 
circuit  superior  court  in  vacation  to  award  a  writ  of  error  to  a 
judgment  of  an  inferior  court;  nor  has  this  court  jurisdiction  to 
award  a  writ  of  error  to  an  inferior  court. 

In  Scotfs  Case,  10  Grat.,  749,  decided  November  23,  1853,  it 
was  held,  p.  754 :  In  a  prosecution  for  selling  ardent  spirits  at 
retail  to  be  drunk  at  the  place  where  sold,  without  having  first 
obtained  a  license  to  keep  an  ordinary,  a  writ  of  error  lies  for 
the  Commonwealth  from  the  judgment  of  an  inferior  court. 

In  Lewis  <&  Diviney's  Case,  25  Grat.,  938,  decided  December 
10,  1874,  it  was  held :  On  a  trial  for  a  misdemeanor  in  a  county 
court,  there  is  a  verdict  and  judgment  against  the  defendants, 
and  they  take  the  case  to  the  circuit  court  where  the  judgment 
is  reversed,  and  the  cause  retained  for  a  new  trial.  There 
may  be  a  writ  of  error  to  the  court  of  appeals  from  the  judg- 
ment of  the  circuit  court. 

Section  4053. 

In  Stokely's  Case,  1  Va.  Cases,  330,  decided  by  the  General 
Court,  it  was  held :  The  superior  court  of  law  of  a  county  has 
jurisdiction  of  appeals  from  judgments  for  contempt  of  court 
rendered  in  the  county  court. 

Dandridge's  Case,  2  Ya.  Cases,  408,  decided  by  the  Gen- 
eral Court,  June,  1824,  was  appealed  by  the  defendant  from 
the  district  circuit  court  to  the  General  Court. 

In  Wells^s  Case,  21  Grat.,  500,  decided  November,  1871,  it  was 
held :  An  appeal  may  be  taken  to  the  court  of  appeals  from  the 
judgment  of  the  circuit  court  imposing  a  fine  upon  a  person 
for  a  contempt  of  the  court,  in  aiding  to  obstruct  the  execution 
of  a  decree  of  the  court. 

Section  4055. 
In  Lazier' s  Case,  10  Grat.,   708,  decided  July,  1853,  it  was 
held :  A  writ  of  error  awarded  during  term  to  a  judgment  in  a 
case  of  felony  may  be  made  returnable  to  any  day  of  the  term. 


Citations  to  the  Code  of  Virginia.  1087 

Section  4056. 
In  Connor's  Case,  2  Va.  Cases,  30,  decided  by  the  General 
Court,  November,  1815,  it  was  held :  A  writ  of  error  in  a  crimi- 
nal case  does  not  of  itself  have  the  effect  of  a  sxipersedeas,  in 
each  case  the  court  will  direct  by  an  endorsement  that  it  shall 
have  that  effect  if  it  be  proper. 

Section  4058. 

This  reference,  2  Va.  Cases,  122,  is  to  a  case  which  is  so 
vague  that  no  authority  can  be  derived  from  it. 

In  Brook's  Case,  4  Leigh,  669,  decided  by  the  General  Court, 
July,  1833,  it  was  held :  A  circuit  superior  court  not  averting  to 
the  statute  of  1832-'33,  sentences  a  convict  to  sohtary  confine- 
ment in  the  penitentiary  for  one-sixth  of  the  term  of  imprison- 
ment fixed  by  the  verdict ;  judgment  reversed  for  this  cause,  but 
the  General  Court  proceeds  to  enter  judgment,  that  the  soUtary 
confinement  shall  be  one-twelfth  of  the  term,  according  to  that 
statute. 

The  reference  to  2  Grat.,  538,  is  an  error. 

In  Nemo's  Case^  2  Grat.,  558,  decided  June,  1845,  it  was 
held  by  the  General  Court :  The  statute  gives  no  authority  to 
the  General  Court  to  correct  the  judgment  of  an  inferior  court. 

In  MarskalVs  Case,  5  Grat.,  663,  decided  June,  1848,  by  the 
General  Court,  it  was  held:  On  an  indictment  for  unlawful 
stabbing  under  the  statute  of  Virginia,  a  verdict  of  "guilty  of 
unlawful  stabbing"  will  not  authorize  a  judgment,  but  the  court 
should  direct  a  new  trial. 

In  OlcPi  Case,  18  Grat.,  915,  decided  October,  1867,  it  was 
held :  Where  the  presentment  does  not  charge  the  offence,  the 
appellate  court  will  reverse  the  judgment  against  the  accused, 
though  no  motion  in  arrest  of  judgment  was  made  in  the  court 
below. 

Where  a  pecuniary  judgment  has  been  rendered  against  a 
defendant  in  a  criminal  case,  and  he  pays  it,  and  upon  appeal 
the  judgment  is  reversed,  the  cause  will  be  remanded  to  the 
court  below  for  an  order  of  restitution  to  be  made  therein,  if 
the  money  is  yet  in  the  hands  or  in  the  power  of  the  court. 

In  Chahoons  Case,  21  Grat.,  822,  decided  November,  1871,  it 
was  held :  A  point  in  the  cause  in  which  the  judges  of  the  court 
of  appeals  are  equally  divided  stands  affirmed  by  virtue  of  the 
act,  as  well  where  it  is  a  ruling  of  the  court  below  in  the  pro- 
gress of  the  cause  as  where  it  is  the  final  judgment  of  the  court 
in  the  case;  and  this  decision  is  final  and  irreversible,  and  can- 
not be  changed  upon  a  second  appeal  in  the  cause. 

Section  4071. 
In  Qimilinys  Case,  2  Va.  Cases,  494,  decided  by  the  General 
Court,  June,  1826,  it  was  held :  If  a  defendant  against  whom  a 


1088  Citations  to  the  Code  of  Virginia. 

judgment  has  been  rendered  for  a  fine  or  amercement  in  a  pro- 
secution for  a  misdemeanor,  being  in  custody  under  a  capias 
pro  fine  or  a  capias  ad  satisfaciendum,  take  the  oath  of  an  in- 
solvent debtor,  surrendering  his  property,  and  be  thereupon 
discharged,  such  discharge  is  an  exoneration  from  all  further 
liability  on  such  judgment  as  to  said  fine  or  amercement.  No 
other  ca.  sa.  can  afterwards  be  obtained  against  him,  by  motion 
to  the  court  or  otherwise,  nor  can  a  fi.  fa.  be  issued  against  his 
after- acquired  goods  and  chattels. 

Section  4074. 

In  Webst^'s  Case,  8  Grat.,  702,  decided  June,  1852,  by  the 
General  Court,  it  was  held :  Where  a  party  is  imprisoned  upon 
a  capias  pro  fine  for  a  fine  and  costs,  he  can  only  obtain  his 
discharge  from  imprisonment.  But  the  term  of  his  imprison- 
ment under  such  capias  is  limited  by  the  provision  in  the  Code. 

In  Wilkerson  (Sherifi^)  vs.  Allan.,  23  Grat.,  10,  and  p.  20,  de- 
cided January  22,  1873,  it  was  held :  A.  is  indicted  for  a  mis- 
demeanor, and  the  jury  find  him  guilty  and  assess  his  fine  at 
five  hundred  dollars,  and  the  court  sentences  him  to  be  im- 
prisoned for  four  months  and  until  he  pays  the  fine.  The 
governor  remits  so  much  of  the  sentence  as  orders  A.'s  im- 
prisonment for  four  months,  and  the  jailer  discharges  him  from 
custody.  The  Commonwealth  then  sues  out  a  capias  pro  fine, 
under  which  A.  is  taken  into  custody  by  the  sheriff;  and  he 
then  applies  for  a  writ  of  habeas  corpus,  and  asks  for  his  dis- 
charge. Held:  The  governor  has  no  authority  to  remit  the 
fine,  and  does  not  intend  it  by  his  pardon.  The  effect  of  the 
pardon  was  to  remit  the  four  months  imprisonment,  but  it  did 
not  affect  the  remaining  part  of  the  judgment.  The  discharge 
of  A.  by  the  sheriff  did  not  discharge  his  liabiliiy  for  the  fine 
to  the  Commonwealth ;  and  he  may  be  taken  in  execution  by  a 
capias  pro  fine. 

SEcnoN  4076. 

In  Shi'^leWs  Case,  18  Southeastern  Reporter,  838,  decided  Jan- 
uary 11,  1894,  it  was  held:  It  is  not  error  to  enter  a  judgment 
calling  for  imprisonment  in  jail,  in  the  absence  of  defendants 
charged  with  a  misdemeanor,  the  rule  of  the  common  law  re- 
quiring their  presence  having  been  changed  by  Code,  this  section. 

CHAPTER  CXCIX. 

Section  4081. 
In  St.  Claire's  Case,  1  Grat.,  556,  decided  December,  1844, 
by  the  General  Court.  In  a  prosecution  for  a  misdemeanor  at 
the  instance  of  a  voluntary  prosecutor,  the  defendant  files  a 
plea  in  abatement,  that  one  of  the  grand  jurors  who  found  the 
indictment  was  not  a  freeholder ;  and  the  issue  made  upon  that 


Citations  to  t»e  C5ode  of  Virginia.  1089 

plea  is  found  for  the  defendant,  and  the  indictment  quashed. 
Held :  The  courts  should  give  judgment  for  the  costs  against 
the  prosecutor. 

Section  4087. 

In  Webster's  Case,  8  Grat.,  702,  decided  June,  1852,  by  the 
General  Court,  it  was  held :  "Where  there  is  a  judgment  in  favor 
of  the  Commonwealth  for  a  fine  and  costs  of  prosecution,  the 
writ  may  issue  for  the  fine  and  the  costs ;  but  where  the  judg- 
ment is  for  costs  without  a  fine,  the  writ  is  not  a  proper  process 
to  enforce  the  judgment. 

In  Ayiglea's  Case,  10  Grat.,  696,  decided  April,  1853.  A  per- 
son convicted  and  sentenced  for  felony  is  afterwards  pardoned 
by  the  executive,  releasing  him  from  all  pains,  penalties,  and 
forfeitures  incurred  in  his  prosecution  by  the  Commonwealth. 
The  statute  only  subjects  the  prisoner  for  such  costs  as  the 
Commonwealth  is  bound  to  pay,  and,  therefore,  does  not  em- 
brace the  fees  of  the  clerks,  sheriflFs,  or  attorneys  for  the  Com- 
monwealth. Held :  That  the  pardon  did  not  release  him  fi'om 
these  costs. 

In  Finch's  Case,  14  Grat.,  643,  decided  January  27,  1858,  it 
was  held:  A  prisoner  convicted  of  a  felony,  and  obtaining  a 
writ  of  error  to  the  court  of  appeals,  where  the  judgment  is  af- 
firmed, is  not  responsible  for  the  fees  of  the  clerk  or  the  attor- 
ney-general. 

CHAPTER  CC. 

Section  4090. 

In  Scotfs  Case,  10  Grat.,  749,  decided  October,  1853,  it  wag 
held,  p.  755 :  The  presentment  in  such  a  case  describes  the  de- 
fendant as  a  free  negro.  As,  for  this  oflfence,  white  persons,  In- 
dians, and  free  negroes  are  to  be  prosecuted  and  punished  in 
the  same  manner,  a  plea  that  the  defendant  is  an  Indian  and 
not  a  free  negro  is  an  immaterial  plea,  and  was  properly  ex- 
cluded. 

Section  4093. 

See  Craig's  Case,  6  Rand.,  731,  cited  ante,  Section  3965 ;  see 
Bias  vs.  Floyd  {Governor),  7  Leigh,  640,  cited  ante.  Section  3965. 

In  Welling's  Case,^  6  Grat.,  670,  decided  December,  1849,  by 
the  General  Court,  it  was  held :  The  county  court  has  the  au- 
thority to  require  a  party  to  enter  into  a  recoguizauce  to  keep 
the  peace,  at  least  where  the  proceeding  was  commenced  before 
the  act  of  1848. 

In  Archer's  Case,  10  Grat.,  627,  decided  January,  1854,  it  was 
held:  In  the  case  of  a  scire  facias  against  a  bail  upon  a  recog- 
nizance in  a  case  of  felony,  a  plea  which  alleges  that  at  the  time 
the  recognizance  was  entered  into  the  principal  was  by  law  ac- 
quitted and  discharged  of  the  said  several  supposed  ofi'ences  of 
69 


1090  Citations  to  the  Code  of  Virginia. 

which  he  stood  charged  presents  no  defence  for  the  bail ;  and 
this,  whether  the  plea  is  to  be  considered  as  averring  an  acquit- 
tal of  the  principal  upon  the  trial  had,  or  discharged  by  opera- 
tion of  law  for  the  failure  to  try  him  within  three  terms  of  the 
court. 

In  such  case  that  at  the  time  of  entering  the  recognizance  the 
principal  was  unlawfully  imprisoned  by  the  Commonwealth,  and 
detained  in  prison  until  by  force  and  duress  of  imprisonment  he 
and  his  security  entered  into  the  cognizance,  presents  no  defence 
for  the  bail. 

Where  a  recognizance  has  a  condition  to  do  some  act  for  the 
doing  of  which  an  obhgation  may  be  properly  taken,  and  the 
court  or  officer  taking  it  had  the  authority  of  law  to  act  in  cases 
of  that  general  description,  the  recognizance  is  valid,  though  it 
does  not  recite  the  special  circumstances  under  which  it  was 
taken ;  and  in  declaring  upon  such  a  recognizance  it  is  not  neces- 
sary to  aver  the  existence  of  the  particular  facts  which  show 
that  the  court  or  officer  had  authority  to  take  it. 

The  condition  of  the  recognizance  being  that  the  principal 
shall  make  his  appearance  on  the  first  day  of  the  next  term  of 
the  court  to  which  he  was  recognized,  but  that  the  judge  who 
presided  on  the  first  Said  day  of  the  court  would  not  sit  in  his 
case  or  make  any  order  therein,  does  not  present  a  defence  for 
the  bail. 

A  plea  that  a  previous  prosecution  against  the  principal  for 
the  same  offences  to  which,  by  the  recognizance  he  had  under- 
taken to  appear,  had  been  terminated  by  a  nolle  prosequi  pre- 
sents no  defence  to  the  action. 

See  Gedney's  Case,  14  Grat.,  318,  cited  ante,  Section  3965. 

Section  4097. 

In  the  case  of  Randolph  {Goveimor)  vs.  Brown  et  als.,  2  Va. 
Cases,  351,  decided  by  the  General  Court,  June,  1823,  it  was 
held :  A  recognizance  has  been  entered  into  by  the  defendant  to 
keep  the  peace  generally,  and  particularly  towards  J.  S.  The 
sd.  fa.  issued  on  this  recognizance  merely  set  forth  that  the  de- 
fendant had  failed  to  perform  the  conditions  of  the  said  recog- 
nizance. This  sci.  fa.  is  defective  in  not  stating  how,  or  in  what, 
he  had  broken  his  recognizance,  and  it  ought  to  be  quashed. 

In  the  case  of  Garland  vs.  Ellis,  2  Leigh,  555,  decided  March, 
1831.  A  demurrer  to  a  sci.  fa.  upon  a  recognizance  of  special 
bail  is  regular  practice.  In  a  joint  action  of  debt  against  three 
obligors,  three  persons  severally  undertake,  by  several  recogni- 
zances, as  special  bail  for  each  of  the  three  defendants ;  after 
judgment,  creditor  sues  out  one  sci.  fa.  against  the  three  bailors 
upon  their  several  recognizances.  Held :  They  cannot  be  joined 
in  one  sci.  fa.,  and  that  the  sci.  fa.  is  naught,  and  ought  to  be 
quashed. 


1 


Citations  to  the  Code  of  Virginu.  1091 

See  Bolmz's  Case,  24  Grat.,  31  and  38,  cited  aivte.  Section 
3965. 

Section  4099. 

See  Craig's  Case,  6  Kand.,  731,  cited  ante,  Section  3965. 

In  CaldwelVs  Case,  14  Grat.,  698,  decided  August  26,  1858,  it 
was  held,  p.  707 :  It  appears  clear  that  the  courts  of  oyer  and 
■terminer  have  the  right  at  any  time  before  a  recognizance  is 
estreated  either  to  estreat  or  spare  it.  This  is  a  discretion 
vested  in  them  for  the  obvious  purpose  of  remitting  the  obliga- 
tion in  a  hard  case.     The  statute  has  extended  this  power. 

Section  4100. 

In  Hamletfs  Case,  3  Grat.,  82,  decided  April,  1846,  it  was 
held  :  The  recognizance  of  bail  taken  by  a  justice  of  a  prisoner 
sent  on  for  trial  by  the  examining  court  must  show  on  its  face 
that  the  examining  court  had  entered  of  record  that  the  pris- 
oner was  bailable,  and  had  fixed  the  amount  in  which  bail 
should  be  taken. 

In  Allen'' s  Case,  18  Southeastern  Keporter,  437,  decided  De- 
cember 7,  1893,  it  was  held:  Under  this  section  it  is  no  objec- 
tion to  the  issue  of  a  scire  facias,  on  a  bail  bond  given  by  one 
accused  of  felonious  assault,  that  the  condition  of  bond  was  that 
defendant  should  appear  to  answer  the  charge  against  him  in- 
stead of  to  answer  the  felony  whereof  he  stands  charged. 

Section  4104. 

In  the  case  of  Morris  vs.  Creel,  1  Va.  Cases,  333,  decided  by 
i;he  General  Court,  it  was  held :  Attachment  oiight  not  to  issue 
for  contempt  until  a  rule  is  served  upon  the  person  in  contempt 
to  show  cause  why  it  should  not. 

See  Deskins's  Case,  4  Leigh,  685,  cited  ante.  Section  3768. 


TITLE  LIV. 

CHAPTEE  CCI. 

Section  4106. 

In    Wolverton's  Case,  75  Va.,  909,  it  was  held:  A  justice  of 

•the  peace  has  jurisdiction  either  to  try  and  punish  a  prisoner 

charged  with  petit  larceny  or  to  examine  and  send  him  on  to 

the  county  court  to  be  indicted  and  tried  therefor;  and  where 

he  exercises  only  the  latter  jurisdiction,  on  the  trial  in  the  county 

court  the  plea  of  " twice ^n  jeopardy"  will  not  he. 

In  Miller's  Case,  88  Va.,  618,  decided  January  15,  1892,  it 
was  held:  This  section,  conferring  upon  justices  jurisdiction 
•concurrent  with  that  of  the  county  and  corporation  courts  over 
tthe  offence  of  keeping  a  bawdy  house,  is  repugnant  to  Article  I., 


1092  Citations  to  the  Code  of  Vikginia. 

Section  10,  Virginia  Constitution,  and  Sections  4107  and  4108. 
Giving  in  such  cases  the  right  of  appeal  and  trial  by  jury  in 
the  appellate  court  does  not  relieve  Section  4106  of  its  repug- 
nancy. 

SiiiCTiON  4107. 
In  Bead's  Case,  24  Grat.,  618,  decided  November,  1873,  it  was 
held:  When  a  person  is  tried  by  a  justice  of  the  peace  for  a 
petit  larceny  and  convicted  he  has  an  absolute  right  of  appeal 
to  the  county  court ;  and  in  that  court  the  cause  is  to  be  heard 
de  novo  upon  the  evidence;  and  the  accused  is  entitled  to  be 
tried  by  a  jury,  as  in  like  cases  originating  in  that  court.  In 
such  a  case  it  is  error  in  the  county  court  to  reverse  the  judg- 
ment of  the  justice  and  remand  the  case  to  the  justice  to  be 
tried ;  and  any  subsequent  trial  of  the  case  by  the  justice  is 
null  and  void.  In  such  case  the  justice  again  tries  and  convicts 
the  accused,  and  he  again  appeals  to  the  county  court.  The 
proceedings  before  the  justice  on  the  second  trial  being  null, 
the  accused  is  in  the  county  court  upon  the  first  appeal,  and  is 
to  be  tried  by  a  jury  as  if  the  case  had  originated  in  that  court. 
The  accused  having  been  tried  by  a  jury  in  the  county  court, 
and  found  guilty  and  sentenced,  the  errors  in  the  proceedings 
of  the  justice  on  his  second  trial  cannot  affect  the  judgment  of 
the  county  court. 


TITLE  LV. 

CHAPTEE  ecu. 

CHAPTER    CCIII. 

Section  4174. 

The  reference  to  2  Va.  Cases,  467,  has  no  bearing  on  the  pre- 
sent statute,  but  had  on  the  statute  in  force  at  the  time  of  the 
decision,  a  very  different  law. 

In  B.iiffin's  Case,  21  Grat.,  790,  decided  November,  1871,  it 
■was  held :  A  penitentiary  convict  is  hired  to  work  on  a  railroad, 
and  in  Bath  county,  in  attempting  to  escape,  he  kills  the  man 
put  by  the  contractor  to  guard  him.  He  may  be  tried  for  the 
offence  before  the  Circuit  Court  of  the  city  of  Richmond,  and 
by  a  jury  summoned  from  the  city. 

The  Bill  of  Rights,  though  made  a  part  of  the  present  Con- 
stitution, has  the  same  force  and  authority,  and  no  more,  that 
it  has  always  had ;  and  the  principle*  which  it  declares  have 
reference  to  free-men,  and  not  to  convicted  felons.  A  convicted 
felon  has  only  such  rights  as  the  statutes  may  give  him. 

A  person  convicted  of  a  felony  and  sentenced  to  confinement 
in  the  penitentiary  is,  until  the  time  of  his- imprisonment  has 


Citations  to  the  Code  of  Yirqinia.  1093 

expired,  or  he  has  been  pardoned,  in  contemplation  of  law,  in 
the  penitentiary,  though  he  may  have  been  hired  out  to  work 
on  the  railroad,  or  the  like,  in  a  distant  county ;  and  the  laws 
relating  to  convicts  in  a  penitentiary  apply  to  him. 

Section  4176. 
See  Buffin's  Case,  21  Grat.,  790,  cited  supra^  Section  4174. 

CHAPTEK  CCIV. 

Section  4179. 

This  reference  to  2  Va.  Cases,  465,  has  no  bearing  on  this 
statute,  but  construes  an  old  one  placing  this  jurisdiction  in  the 
Superior  Court  for  Henrico  county. 

In  the  case  of  King  vs.  Lynn  {Penitentiary  Superintendent) y 
18  Southeastern  Keporter,  439,  decided  November  23,  1893. 
Code  1887,  Sections  4179,  4182,  provide  that  if  a  person  sen- 
tenced to  the  penitentiary,  and  received  therein,  shall  have  been 
before  sentenced  to  like  punishment,  and  the  record  of  his  con- 
\-iction  does  not  show  that  he  was  sentenced  under  Sections 
3905,  3906,  requiring  a  sentence  for  an  increased  term,  in  such 
cases  the  superintendent  of  the  penitentiary  shall  file  an  infor- 
mation in  the  Circuit  Court  of  Kichmond  to  require  the  convict 
to  say  whether  he  is  the  person  formerly  convicted  and  sen- 
tenced, and  if  he  remain  silent  and  deny  such  identity,  a  jury  of 
bystanders  shall  be  summoned  to  try  the  issue  thus  raised,  and 
upon  a  verdict  against  the  prisoner,  the  court  shall  sentence  him 
to  such  further  confinement  as  is  prescribed  by  the  Chapter  190 
in  case  of  a  second  or  third  conviction.  Held :  That  such  pro- 
visions are  constitutional,  as  such  prisoner  is  not  in  the  position 
of  one  charged  with  a  crime  for  the  first  time,  with  all  the  pre- 
sumptions of  law  in  favor  of  his  innocence. 

Section  4180. 
In  Brooks's  Case,  2  Rob.,  845,  decided  by  the  General  Court, 
December,  1843.  A  report  being  made  by  the  superintendent 
of  the  penitentiary  that  a  convict  received  into  the  penitentiary 
is  the  same  person  mentioned  in  the  record  of  a  former  convic- 
tion, and  that  he  has  not  been  sentenced  to  the  punishment  pre- 
scribed by  law  for  his  second  offence,  the  court  continues  the 
case  at  several  successive  terms,  in  the  absence  and  without  the 
consent  of  the  convict ;  after  which  he  is  brought  into  court  for 
the  first  time,  and  his  identity  being  duly  ascertained,  he  is  sen- 
tenced to  the  proper  punishment  for  his  second  offence.  Held: 
Such  continuance  of  the  case  furnishes  no  ground  of  objection 

to  the  judgment. 

Section  4181. 

For  Brooks's  Case,  2  Rob.,  845,  see  ante,  Section  4180. 


1094  Citations  to  the  Code  of  Vieginia. 

Section  4182. 

In  Brooks's  Case,  2  Eob.,  845,  decided  by  the  General  Court,. 
December,  1843.  Upon  an  inquiry  whether  a  convict  received 
into  the  penitentiary  be  the  same  person  mentioned  in  the 
record  of  a  former  conviction,  the  prisoner  has  no  right  to 
challenge  peremptorily  any  person  called  as  a  jtiror. 

See  King  vs.  Lynn,  18  S.  E.  Eep.,  439,  cited  ante.  Section 
4179. 

Section  4183. 

In  Bryant's  Case,  2  Va.  Cases,  465,  decided  by  the  General 
Court,  June,  1825,  it  was  held :  A  convict  ascertained  to  be  serv- 
ing a  second  term,  may,  on  his  being  identified,  either  by  ver- 
dict or  by  confession,  be  sentenced  by  said  court  to  a  portion  of 
confinement  in  solitary  cells. 

Section  4185. 
See  Ruffi,ris  Case,  21  Grat.,  790,  cited  ante.  Section  4174. 

Section  4187. 
In  Johnson's  Case,  2  Grat.,  581,  decided  December,  1845,  it 
was  held,  by  the  General  Court :  On  the  trial  of  a  convict  from 
the  penitentiary  for  a  felony,  a  convict  confined  there  for  felony 
is  a  competent  witness  for  the  prosecution. 


TITLE  LVI. 
CHAPTEE  CCV. 

Section  4198. 


In  the  case  of  Lee  {Sergeant)  vs.  Murphy,  22  Grat.,  789^ 
decided  December  4,  1872,  it  was  held :  The  governor  of  Vir- 
ginia has  authority  under  the  Constitution  to  grant  a  condi- 
tional pardon  to  a  prisoner  convicted  of  felony.  The  condition 
annexed  to  a  pardon  must  not  be  impossible,  immoral  or  illegal, 
but  it  may,  with  the  consent  of  the  prisoner,  be  any  punishment 
recognized  by  statute,  or  by  the  common  law  as  enforced  in 
this  State.  Though  the  warrant  of  the  governor  speaks  as  com- 
muting the  punishment,  yet  as  it  substitutes  a  less  for  a  greater 
punishment,  and  is  intended  to  be  done,  and  is  done,  with  the 
consent  of  the  prisoner,  it  will  be  considered  a  pardon,  and  not 
a  commutation  of  the  punishment. 

In  the  case  of  Wilkersoji  {Sheriff,  for,  etc.,)  vs.  Allen,  23  Grat., 
10  and  20,  decided  January,  1873.  A.  is  indicted  for  a  misde- 
meanor, and  the  jury  find  him  guilty  and  assess  his  fine  at  five 
hundred  dollars,  and  the  court  sentences  him  to  be  imprisoned 
for  four  months,  and  until  he  pays  the  fine.     The  governor  re- 


Citations  to  the  Code  of  Virginia.  1095 

mits  so  much  of  the  sentence  as  orders  A.'s  imprisonment  for 
four  months,  and  the  jailer  discharges  him  from  custody.  The 
Commonwealth  then  sues  out  a  capias  pro  fine,  under  which  A. 
is  taken  into  custody  by  the  sheriflf;  and  he  then  applies  for  a 
writ  of  habeas  corp^is,  and  asks  for  his  discharge.  Held:  The 
governor  has  no  authority  to  remit  the  fine,  and  does  not  in- 
tend it  by  his  pardon.  The  effect  of  the  pardon  was  to  remit 
the  four  mouths  imprisonment ;  but  did  not  affect  the  remain- 
ing part  of  the  judgment. 

In  Blair's  Case,  25  Grat.,  850,  decided  March  12,  1874,  it 
was  held :  Under  the  Constitution  of  Virginia,  the  governor  has 
authority  to  pardon  a  person  convicted  of  a  felony  by  the  ver- 
dict of  a  jury,  before  sentence  is  passed  upon  him  by  the  court. 

Section  4199. 
See  Wilkerson  {Sheriff)  vs.  Alien,  23  Grat.,  10  and  20,  cited 
ante,  Section  4198. 

TITLE   LVII. 

CHAPTEE  CCVI. 

Section  4202. 
In  the  case  of  Carter's  Heirs  vs.  Edwards,  88  Va.,  205,  de- 
cided July  2,  1891,  it  was  held :  This  section  repealed  the  act 
of  March  9,  1880,  as  to  actions  of  ejectment  in  certain  counties, 
the  said  act  being  a  general  law. 

Section  4204. 

In  Scott's  Case,  2  Va.  Cases,  54,  decided  by  the  General 
Court,  June,  1817,  it  was  held :  Where  an  offence  is  made  a 
felony  by  statute,  and  the  statute  be  afterwards  repealed,  no 
proceedings  can  be  had  after  the  repeal  for  an  offence  commit- 
ted under  it,  unless  the  repeaUng  statute  have  a  proviso  enabling 
the  proceedings  for  offences  committed  before.  This  rule  is  ap- 
plicable to  cases  where  the  repealing  statute  has  a  clause  de- 
scribing the  offence  and  prescribing  the  punishment,  in  all  re- 
spects the  same  with  the  statute  repealed. 

In  Attoo's  Case,  2  Va.  Cases,  382,  decided  by  the  General 
Court,  November,  1823,  it  was  held:  The  passage  of  an  act 
which  prescribes  a  new  punishment  for  old  offences,  and  repeals 
all  laws  coming  within  the  purview  of  it,  without  providing  that 
offences  committed  before  the  operation  of  the  new  law  shall 
be  punished  under  the  old,  operates  as  a  discharge  to  all  who 
have  committed  such  offences  and  have  not  been  tried  previous 
to  the  new  law  going  into  effect.  , 

In  PegranCs  Case,  1  Leigh,  569,  decided  June,  1829,  it  was 


1096  Citations  to  the  Code  of  Virginia. 

held :  A  statute  passed  in  the  Assembly  of  1827-'28,  prescribing 
a  new  punishment  for  an  offence  committed  after  May  1,  1828, 
does  not  repeal  former  statutes,  defining  the  offence  and  pre- 
scribing other  punishment  for  the  same,  as  to  such  offence  com- 
mitted before  May  1,  1828. 

In  Alleii^s  Case,  2  Leigh,  727,  decided  June,  1830.  By  statute 
of  1819  grand  larceny  is  defined  as  stealing  goods  to  the  value 
of  four  dollars  and  upwards,  and  punished  by  imprisonment, 
etc.,  not  less  than  one  nor  more  than  three  years;  by  statute  of 
1824  larceny  committed  after  May  1,  1824,  to  the  value  of  ten 
dollars  and  upwards,  is  defined  grand  larceny,  and  punished  as 
grand  larceny  theretofore  was,  and  larceny  of  goods  of  less  value 
than  ten  dollars  is  defined  petit  larceny,  and  punished  as  petit 
larceny  theretofore  was ;  and  the  latter  statute  neither  makes 
provisions  as  to  larcenies  committed  before  May  1,  1824,  nor 
contains  any  express  repeal  of  the  former  statute.  Held :  The 
latter  statute  does  not  repeal  the  former  as  to  larcenies  com- 
mitted before  May  1,  1824. 

In  the  case  of  Curran  et  als.  vs.  Spraul  et  als.,  10  Grat.,  145, 
decided  July  18,  1853,  it  was  held,  p.  148 :  If  a  party  shows  a 
defence  vahd  at  the  time  it  is  passed  on  by  the  court,  a  subse- 
quent change  in  the  law  cannot  deprive  him  thereof. 

In  the  case  of  Hogan  vs.  Guigon  {Judge),  29  Grat.,  705,  de- 
cided January  31,  1878,  it  was  held :  A  statute  will  not  be  re- 
pealed by  implication,  unless  the  latter  statute  is  so  inconsistent 
with  the  first  that  they  cannot  stand  together,  or  the  latter 
statute  embraces  the  whole  subject-matter  of  the  first. 

In  the  case  of  Davies  <£;  Co.  vs.  Oreighton,  33  Grat.,  696,  de- 
cided September,  1880,  it  was  held:  The  act  of  May  29,  1852, 
which  authorizes  the  organization  of  building  fund  associations, 
has  not  been  repealed  by  any  of  the  subsequent  statutes,  and  a 
building  fund  association  organized  under  that  statute  on  the 
8th  of  September,  1872,  is  a  legally  organized  association. 

In  Ryan's  Case,  80  Va.,  385,  decided  April  2,  1885,  it  was 
held :  Unless  a  statute  by  its  language,  expressly  or  by  neces- 
sary imphcation,  demands  such  construction,  it  will  not  be  con- 
strued as  repealing  a  previous  statute,  or  as  being  retrospective. 


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CONSTITUTION. 

, -Ll-Ji.  Paos. 

I,  Section  21 1 

4,  Section  5, 1 

4,  Section  8, 2 

5,  Sections  14  and  15,  .    .    .  2 

5,  Sections  17  and  22,  .    .    .  4 

6,  Section  2 4 

6,  Sections  3,  8.  and  14,  .    .  8 

C,  Sections  20  and  22,  .    .    .  9 

6,  Section  25, 10 

7,  Section  5, 10 

10,  Sections  1,  4,  and  10,  .  11 

II,  Section  1, 12 

11,  Section  1,  Paragraph  2,  13 
11,  Section  9, 13 


CODE. 

TITLE  I. 

CHAPTER  I. 

TITLE  II. 

CHAPTER  II. 

Section  3 14 

Section  5.  Paragraphs,  3, 4, 8,  and  9,  14 

Section  5.  Paragraphs  12  and  13,  .  15 

Section  (J 16 

Section  7 17 

TITLE  III. 
CHAPTER  III. 

Section  13,  Paragraph  8, 17 

CHAPTERS  IV.,  V. 

TITLE  IV. 

CHAPTER  VI. 

Sections  43,  49,       18 

TITLE  V. 
CHAPTER  VII. 
CHAPTER  VIII. 

Sections  83.  84,  . 19 

CHAPTERS  IX.,  X. 
Section  117, ...........    19 

CHAPTER  XI. 
Section  1«0 19 


TITLE  VI. 

CHAPTER  XII. 

Paqk. 

Sections  162  and  163, , 20 

Sections  165,  167, 21 

TITLE  VII. 
CHAPTER  XIII. 

Sections  168  and  177, . 21 

Sections  179  and  180, 22 

Section  181,- 28 

TITLE  VIII.  23 
CHAPTER  XIV. 

Section  183,  Paragraph  2, 25 

Section  185,  Paragraph  8, 26 

Section  192, 96 

TITLE  IX. 

CHAPTER  XV. 

Section  207, 26 

TITLE  X. 

CHAPTERS  XVI.,   XVII.,   XVIH., 
XIX.,  XX. 

TITLE  XI. 
CHAPTER  XXI. 

TITLE  XII. 

CHAPTER  XXII. 

Section  399 27 

Sections  402  and  406, 28 

Section  408, 81 

Sections  409  to  412 89 

Sections  414  to  434, 88 

TITLE  XIII. 
CHAPTERS  XXIII.,  XXIV. 

Sections  457  to  485 84 

Sections  489  to  574.                         .85 
Section  579 86 

CHAPTER  XXV. 

Sections  581  to  587 40 

CHAPTER  XXVI. 

Section  500, 41 

CHAPTER  XXVII. 

Section  619, 41 


1098 


INDEX. 


CHAPTER  XXVIII. 

Page. 

Section  635, 41 

Section  642, 43 

Sections  6-51  to  653, x  44 

Sections  654  and  655, 45 

Section  661, 46 

CHAPTERS  XXIX.,  XXX. 

Sections  682  to  685, 47 

Sections  684  to  702, 48 

CHAPTER  XXXI. 

Sections  712  to  717 48 

Sections  724  to  735, 49 

TITLE  XIV, 
CHAPTER  XXXII. 

Section  746, 49 

Section  751, 50 

TITLE  XV. 

CHAPTER  XXXIII. 

Sections  755  to  780, 51 

TITLE  XVI. 

CHAPTER  XXXIV. 

Section  802, 51 

CHAPTER  XXXV. 
Sections  812  and  813, 52 

CHAPTER  XXXVI. 

Section  833,  Paragraph  2, 52 

Sections  834  to  838, 53 

Sections  843  and  844, 54 

CHAPTER  XXXVII. 

Sections  859  to  864, 54 

Section  865, 55 

CHAPTER  XXXVIII. 

Section  869, 56 

Section  881, 57 

CHAPTER  XXXIX. 

Sections  893  to  895, 57 

Sections  897  to  901, .58 

Sections  907  to  909, 59 

Section  910, 60 

Section  911, 65 

CHAPTERS  XL.,  XLI.,  XLII. 

Section  925, 65 

CHAPTER  XLIII. 

Sections  946  to  948, 66 

Section  950, 67 

Section  951, 68 

Section  955, 71 

Sections  989  and  990, 72 

CHAPTER  XLIV. 
Sections  1016  to  1038, 73 


Paok.' 
Sections  1042  to  1048, 75- 

CHAPTER  XLV.  . 

Section  1060, 76- 

TITLE  XVII. 

CHAPTER  XLVI. 

Section  1068, 76 

Section  1069, 78 

Sections  1072  to  1074, 81 

Sections  1075  and  1076, 83 

Section  1078, 84 

Sections  1079  and  1080, 86 

Section  1081, 87 

Sections  1093  and  1094, 90^' 

Section  1103, 91 

TITLE  XVIII. 

CHAPTER  XLVII. 

Section  1106, 92' 

Sections  1107  to  1122, 93 

Section  1125, 94 

Section  1127, 95 

Section  1128, 96 

Sections  1130  to  1145, 97 

Section  1149, 98. 

CHAPTER  XLVIII. 

Section  1159, 100  • 

Section  1161, 101 

CHAPTERS  XLIX.,  L. 

Section  1181, .102- 

Section  1182, '    '   .    .  103^ 

CHAPTER  LI. 

Sections  1185  to  1201, 103 

Sections  1202  to  1233, 104 

Sections  1234  to  1243, 105 

CHAPTER  LII. 
Section  1264, 107 

CHAPTER  LIII. 

Sections  1265  to  1271, 108 

Section  1276, 109  • 

CHAPTER  LIV. 

Sections  1287  to  1291, 110' 

Section  1292, 112 

CHAPTER  LV. 

,  Section  1295, 112 

Section  1296 114' 

CHAPTER  LVI. 

TITLE  XIX. 

CHAPTER  LVII. 
Section  1315, 115; 

CHAPTERS  LVIIL,  LIX, 

TITLE  XX. 

CHAPTER  LX. 

Section  1338, 116 


INDEX. 


1099 


CHAPTER  LXI.  j 

Page. 

Section  1347, 117  • 

Sections  1348  to  1350, 121 

Section  1353, 123 

Section  1354, 127 

Section  1358, 128 

CHAPTER  LXII. 

Sections  1374  and  1375, 131 

Section  1376, 132 

Sections  1381  to  1388, 133 

TITLE  XXI. 

CHAPTER  LXIII. 
Section  1394, 134 

CHAPTER  LXIV. 

Section  1396, 135 

Sections  1397  and  1398, 136 

Sections  1399  to  1405, 138 

Section  1408, 139 


TITLE  XXII. 

CHAPTER  LXV. 
Section  1420, 139 

CHAPTER  LXVI. 

Sections  1429  to  1437, 140 

Sections  1441  to  1455, 141 

CHAPTER  LXVn. 

Sections  1523  to  1528 142 

CHAPTERS  LXVin.,  LXIX. 
Section  1563, 142 

CHAPTERS  LXX.,  LXXI.,  LXXH., 
LXXin. 

'Section  1651, 142 

CHAPTER  LXXIV. 

TITLE  XXIII. 
CHAPTER  LXXV. 

Section  1669, 143 

Sections  1688  to  1701, 144 

Section  1702, 146 

Section  1703, 147 

TITLE  XXIV. 

CHAPTER  LXXVI. 

Sections  1719  to  1721 148 

CHAPTERS    LXXVII.,    LXXVHI., 
LXXIX.,  LXXX. 

TITLE  XXV. 

CHAPTER  LXXXI. 

Section  1788, 148 

Section  1789, 149 

CHAPTERS  LXXXn.,  LXXXIH. 
Sections  1797  to  1810 149 


CHAPTER  LXXXIV. 

Paoc. 

Sections  1864  to  1878, 150- 

Section  1891, 152 

CHAPTERS  LXXXV.,  LXXX VI., 
LXXXVII. 

TITLE  XXVI. 

CHAPTERS  LXXXVm.,  LXXXIX., 
XC,  XCI. 

Section  2004, 158. 

CHAPTER  XCn.     • 

Section  2007, 158^ 

TITLE  XXVII. 

CHAPTERS  XCni..  XCIV..  XCV., 
XCVI. 

Section  2091, *154 

Section  2092, 156 

CHAPTER  XCVn. 

Sections  2137  to  2147, 155- 

CHAPTER  XCVIH. 

Section  2179 16«- 

CHAPTER  XCIX. 
TITLE  XXVIII. 
CHAPTER  C. 

Sections  2218  to  2224, 157 

Section  2227, 158 

Section  2229, 16» 

CHAPTER  CI. 

Section  2252, 15» 

Section  2257, jW 

Section  2258, IJi 

Section  2260, 1»2 

Section  2261, I** 

Sections  2282  and  2268, \^> 

Sections  2264  and  2265, l** 

CHAPTER  CII. 

Section  2267, H"' 

Section  2269, '  1' 

Section  2270, ':'.' 

Section  2271, |'' 

Section  2274, J '^ 

Section  2275, ]^ 

Section  2276 

Sections  2277  to  2281,   ... 

CHAPTER  till. 
Sections  2284  to  2286,  .... 

Sections  2285  to  2288 

Sections  2289  to  2297,  ... 

TITLE  XXIX. 
CHAPTER  CIV. 

Section  2304, 

Sections  2321  to  2827. 
Sections  2886  to  2889.   • 


18.-) 

isi; 
in: 


1100 


INDEX. 


Page. 

Sections  2340  to  2349, 197 

Sections  2351  to  2368, 198 

CHAPTER  CV. 

Sections  2375  to  2388, 200 

Sections  2397  and  2398, 202 

Section  2399, 204 

CHAPTER  CVI. 

TITLE  XXX. 
CHAPTER  CVII. 

Seetion.2413, 204 

Section  2414, 207 

Section  2415, 212 

Section  2416, 213 

Section  2418, 214 

Section  2419, 216 

Section  2420, 218 

Section  2421, 220 

Sections  2422  to  2426, 232 

Sections  2428  and  2429, 234 

Section  2430, 236 

Section  2432, 237 

Section  2434, 238 

CHAPTER  CVIII. 

Sections  2440  to  2442, 238 

Section  2446, 244 

Sections  2449  to  2455, 248 

Section  2456, 250 

CHAPTER  CIX. 

Section  2458, 251 

Section  2459, 263 

Section  2460 266 

Section  2461, 267 

Sections  2462  and  2463, 271 

Section  2465, 273 

Sections  2466  and  2467, 278 

Section  2468, 279 

Sections  2469  and  2470, 281 

Section  2472, 282 

Section  2473, 284 

CHAPTER  ex. 

Section  2474,    .    .    .• 284 

Section  2475,   ...-.•.. 286 

Section  2476, 291 

Sections  2479  to  2484, 293 

Section  2498, 294 

CHAPTER  CXI. 

Section  2500, 294 

-Sections  2501  to  2510, 296 

CHAPTER  CXn. 

Section  2512, 296 

Sections  2513  and  2514, 297 

Section  2515, 305 

Sections  2517  and  2518, 307 

Sections  2519  to  2521, 310 

Section  2522 311 

Sections  2523  to  2526, 313 


Page. 

Section  2528, 314 

Section  2529, 315 

Sections  2531  and  2532, 316 

Section  2533, 317 

Section  2534 320 

Sections  2536  and  2537, 321 

Section  2542, 322 

Section  2544, 323 

Section  2546, 327 

CHAPTER  CXIII. 

Section  2549, 327 

Section  2550, 328 

Sections  2551  and  2552, 329 

Section  2553, 330 

Sections  2554  to  2556, 331 

Section  2557, 332 

Section  2259, 335 

Section  2561, 337 

TITLE  XXXI. 

CHAPTER  CXIV. 

Section  2562, 342 

Section  2;563, 347 

Sections  2564  to  2569, 348 

TITLE  XXXII. 
CHAPTER  CXV. 

Section  2581 348 

Sections  2-585  to  2587, 349 

Section  2592, 350 

CHAPTER  CXVI. 

Sections  2597  to  2600, 350 

Sections  2601  to  2603, 351 

Section  2604 354 

Sections  2605  and  2606, 357 

Section  2608, 358 

Section  2609, 359 

Sections  2610  to  2614, 361 

TITLE  XXXIII. 

CHAPTER  CXVII. 

Section  2616, 361 

Section  2618, 364 

Sections  2620  and  2621, 365 

Sections  2622  to  2626, 366 

TITLE  XXXIV. 

CHAPTER  CXVIII. 

Sections  2629  to  2632, 367 

TITLE  XXXV. 

CHAPTER  CXIX. 

Section  2636, 367 

Section  2637, 368 

Section  2639, 369 

Section  2641, 371 

Sections  2642  to  2645, 373 

Sections  2646  to  2648, 375 

Section  2651, 378 

Section  2652, 379 

Section  2654, 380 


INDEX. 


1101 


Sections  2655  to  2658, 381 

Section  2659, 382 

Section  2660, 383 

Section  2662 386 

CHAPTER  CXX. 

Section  2663 386 

Section  2664, 389 

Section  2665, 390 

Section  2666, 392 

Section  2667 393 

Section  2668, 394 

TITLE  XXXVI. 

CHAPTER  CXXI. 

Section  2676, 395 

Section  2678, 399 

Section  2679, 400 

Section  2687, 401 

Sections  2693  to  2695, 403 

Sections  2697  to  2699 413 

Sections  2700  to  2706, 416 

Section  2707, 417 

TITLE  XXXVII. 
CHAPTER  CXXII. 

Section  2713, 417 

CHAPTER  CXXni. 

Section  2716, 418 

Sections  2718  and  2719, 430 

Section  2720, 431 

CHAPTER  CXXIV. 

Section  2722 431 

Section  2723, 432 

Sections  2725  and  2726 433 

Section  2727 434 

Sections  2728  and  2729 435 

Sections  2730  to  2735, 437 

Section  2736 441 

Sections  2738  to  2740, 442 

Section  2741, 443 

Section  2742, ,   .  444 

Section  2744, 445 

Section  2746 446 

Sections  2749  and  2750 447 

Sections  2751  and  2752, 448 

Sections  2754  to  2757 449 

CHAPTER  CXXV.  450 

Section  2760, 450 

Sections  2770  and  2771, 4;}1 

CHAPTER  CXXVI.  451 

Section  2775 4-53 

Section  2776 454 

TITLE  XXXVIII. 

CHAPTER  CXXVH. 

Sections  2782  and  2783, 454 

Sections  2785  to  2787, 455 

Section  2791 457 


Paoe. 

Sections  2792  to  2797, 4;59 

Section  2800, 460 

CHAPTERS  CXXVm.,  CXXIX. 
TITLE   XXXIX. 
CHAPTER  CXXX.  460 

Section  2816. 481 

Sections  2818  to  2821, 482 

Section  2822, 48a 

Sections  2823  to  2825 488 

TITLE  XL. 
CHAPTER  CXXXI. 

Section  2830 48» 

CHAPTER  CXXXn. 

Section  2886 48» 

CHAPTER  CXXXHI. 

Section  2840, 492 

Section  2841, 504 

CHAPTER  CXXXIV. 

Section  2842, 504 

Section  2845, 506 

Section  2848, 507 

Section  2849, 508 

Section  2860, 509 

Section  2a52 510 

Section  2853, 511 

Sections  2854  and  2855 512 

Sections  2856  to  2858, 514 

Section  2860, 515 

Section  2862, 581 

CHAPTER  CXXXIV.* 

Section  2863 531 

Section  2874, 582 

Section  2877 533 

CH.U'TER  CXXXV.+ 

Section  2890, 538 

Section  2891 586 

Section  2893, 586 

Section  2895 551 

TITLE  XLI. 
CHAPTER  CXXXVn. 

Section  2896, 558 

Section  2897 554 

Sections  2898  to  2900, 558 

Section  2901 659 

Section  2902, 560 

Sections  2903  and  2904 566 

CHAPTER  CXXXVHI.      666 

Section  2912 570 

TITLE  XUI. 
CHAPTER  CXXXIX. 

Section  2915 670 

Section  2917 581 

Sections  2918  and  2919 682 


>  Thin  corresponcUi  with  Ch.  CXXXV.  in  Code.        t  Thl«  correspond,  with  Ch.  CXXXVI.  in  tod*. 


1102 


INDEX. 


Page. 

Section  2930 583 

Section  2921 598 

Section  2922, 600 

Sections  2923  and  2924 602 

Section  2927, 608 

Section  2929 605 

Sections  2930  and  2931 006 

Section  2932, ,    ....  607 

Section  2933 608 

Sections  2934  to  2936 610 

Section  2937, 611 

TITLE  XLIII. 
CHAPTER  CXL. 

■Sections  2939  to  2952, 611 

Section  2953, 612 

CHAPTER  CXLI. 

Section  2959, 613 

Sections  2961  and  2962, 617 

Section  2964, 618 

■Section  2967, 620 

Section  2968, 622 

Sections  2969  to  2971, 623 

Sections  2975  and  2976, 626 

Sections  2979  to  2981, 628 

Section  2982, 630 

Sections  2983  and  2984 631 

•Section  2986, 632 

Sections  2989  to  2991, 634 

:Section  2995,    .    .    .  • 636 

TITLE  XLIV. 

CHAPTER  CXLH. 

Section  2998, 636 

Sections  2999  to  3001, 638 

;Section  3003, 640 

CHAPTER  CXLIII. 

Section  3006, 641 

Sections  3007  to  3009, 643 

Section  3010, 652 

TITLE  XLV. 

CHAPTER  CXLIV. 
Section  3012, 653 

CHAPTER  CXLV.  653 

Section  3023, 655 

CHAPTER  CXLVI. 

•Section  3029, 656 

Section  3035, 657 

TITLE  XLVL 

CHAPTER  CXLVII. 

Sections  3045  to  3049, 657 

-Sections  3054  and  3055, 658 

CHAPTER  CXLVni. 

Sections  3060  to  3062 658 

CHAPTER  CXLIX. 
rSection  3069, 658 


Page. 
Sections  3073  to  3079, 659 

CHAPTER   CL. 
Section  3086, 659 

CHAPTER  CLI. 

Sections  3111  to  3114 659 

Sections  3123  to  3124, 660 

Section  3126, 061 

CHAPTER  CLII. 

Sections  3139  to  3156, 661 

Sections  3166  to  3108, 662 

TITLE  XLVII. 
CHAPTERS  CLHI.,  CLIV. 

Sections  3193  to  3198, 663 

Sections  3199  and  3200, 664 

Section  3201 667 

Section  3202. 668 

CHAPTER  CLY. 
TITLE  XLVIII. 

CHAPTER  CLVI. 

Section  3207 669 

Sections  3209  to  3311, 673 

Section  3312, 673 

Section  3213, 674 

CHAPTER  CLVII. 

Section  3214, .  675 

Section  3315, 676 

CHAPTER  CLVin. 

Section  3820, 676 

Sections  3234  and  3235, 677 

Sections  3337  to  3330, 679 

Sections  3331  and  3333, 080 

Section  3333, 682 

CPIAPTER  CLIX. 

Sections  3336  to  3242 683 

Sections  3243  and  3244 684 

Section  3248, 685 

Section  3251, 686 

Sections  3353  and  3354, 687 

Section  3255, 688 

Sections  3259  and  3300, 690 

Sections  3301  and  3303, 693 

Section  3364, 694 

Sections  3366  to  3308, 090 

Sections  3371  and  3373, 697 

Sections  3373  and  3374, 700 

Section  3375 701 

Sections  3376  to  3278, 703 

Section  3379 706 

Sections  3380  and  3381 707 

Section  3383, 708 

Section  3384, 709 

Section  3285, 710 

Sections  3286  and  3287, 711 

Section  3288, 715 

Sections  3290  and  3391, 716 


INDEX. 


1103 


•Section  3292 717 

^Sections  3293  and  3294 718 

CHAPTER  CLX.  719 

Sections  3295  to  3298, 72r) 

Section  3299 73(5 

Section  3303, 740 

CHAPTER  CLXI. 

Section  3306 740 

Sections  3307  and  3308, 741 

Section  3309 745 


Section  3436, 837 

Sections  3437  and  3438, 838 

Sections  3441  and  3442, 839 

Section  3444, 842 

Section  3445, 843 

Section  3446, 845 

CHAPTER  CLXIX. 

Sections  3447  iui<l  3448, 846 

Section  3449, 847 

Section  3450, 848 

Section  3451; 849 


CHAPTER  CLXn. 

Section  3316, 745 

Section  3317, 747 

CHAPTER  CLXUI. 

.Section  3320 747 

Sections  3322  to  3325, 752 

CHAPTER  CLXIV. 

Sections  3328  to  3330, 752 

Section  3334, 753 

Sections  3336  to  3339, 755 

Sections  3340  to  3342 756 

Sections  3344  to  3346 757 

Sections  3347  to  3358, 766 

.Sections  3359  to  3362 767 

Sections  3364  and  3365 771 

.Section  3366 772 

Section  3370 773 

Sections  3373  to  3375, 775 

CHAPTER  CLXV. 

^Section  3376, 776 

CHAPTER  CLXVI. 

.Section  3378 777 

Sections  3380  and  3381, 778 

Section  3383 7a5 

^Section  3384 786 

Section  3385 '88 

Sedition  3387 «»*> 

Section  3388, 791 

Section  3390 'j\z 

Section  3391 '•'•; 

Section  3392 ••    ••  '■'• 

Section  3393 ^'" 

Section  3894 '"' 

Section  3395 

Section  3396 .    •         ^ 

CHAPTER  CLXVII. 

Section  3397 ^10 

Sections  3398  to  :M05 821 

:Soction8  340i)to:U1.S 828 

.Section  3420, 2^n 

Section  3421 »2« 

Sections  3422  to  3434, yj^ 

.Section  3425, 

•JSectlon  8426, 

CHAPTER  CLXVni 


M2H 
830 


Section  3485, 


asi 


CHAPTER  CLXX.  852 

Section  3453, 858 

Section  3454, 856 

Section  3455 861 

Section  3457, 870 

Sections  3458  to  3469 871 

Section  3470, 872 

Section  3474, 877 

Section  3475 878 

Section  3482, 879 

Section  8484, 880 

Section  3485 887 

Sections  3486  to  3488 888 

Section  3490, 889 

Section  8492, ^^^'^ 

CHAPTER  CLXXI. 

Sections  8493  to  3495 89J 

TITLE  XLIX. 

CHAPTER  CLXXn. 
Section  3520, 893 

CHAPTER  CLXXIII. 
Section  3589,   ....•••...  898 

Sections  8548  to  8i546, 894 

Sections  3552  to  3554, 895 

TITLE  L. 
CHAPTER  CLXXIV. 

Sections  8557  tb  3561 896 

S.'ction  3566, 897 

S.'<-tion  3567 899 

S.vlioim  3569  and  3570, 906 

Sc'tioii  ;',.")71, 1^ 

^,;      ,1.178, 910 

;-i74and:«75 911 

;,-,76  and  8577 918 

CHAPTER  CLXXV. 

Section  8583, JJl^ 

Section  a585, «1 

Sectiona  8686  and  8587 920 

Section  8591 ;»25 

Sections  8594  to  8596 5  2^ 

S(^ctlon3597 »^ 

Svtion  3599, »»» 

Soction  3600 «81 

CHAPTER  CLXXVI. 
Section  8601 988 


1104 


INDEX. 


Sections  3602  to  3608, 933 

Sections  3609  to  3614, 934 

CHAPTER  CLXXVII.        935 

Sections  3620  to  3621, 945 

TITLE  LI. 

CHAPTER  CLXXVIII. 

Section  3630, 947 

Section  3634, 949 

Sections  3635  to  3649, 950 

Sections  3652  to  3657, 951 

TITLE  Lll. 

CHAPTERS  CLXXIX.,  CLXXX. 

Section  3662, 953 

Sections  3664  to  3671, 965 

Section  3673, 968 

Sections  3674  and  3675, 969 

Sections  3678  and  3680, ......  970 

Sections  3681  to  3691, 973 

Section  3692, 974 

CHAPTER  CLXXXI. 

Section  3695, 975 

Sections  3696  to  3699, 976 

Sections  3701  to  3704, 977 

Sections  3705  to  3707 979 

Section  3708, 986 

Sections  3714  to  3717, 987 

Sections  3720  to  3722, 988 

Section  3729, 989 

CHAPTER  CLXXXII. 

Section  3733, 990 

Section  3735, 993 

Section  3737, 996 

Section  3738, 998 

CHAPTER  CLXXXin. 

Section  3741, 999 

Sections  3742  to  3744, 1001 

Sections  3749  to  3755 1002 

Sections  3767  and  3768, 1003 

CHAPTER  CLXXXIV. 

Sections  3774  to  3780, 1005 

CHAPTER  CLXXXV. 

Section  3781, 1005 

Section  3783, 1007 

Sections  3784  to  3786, 1008 

Sections  3787  and  3788, 1009 

Sections  3799  to  3805, 1010 

CHAPS.  CLXXXVI.,    CLXXXVn. 

Section  3815,. 1011 

Sections  3816  to  3818, 1012 

Sections  3820, 1014 

Sections  8824  to  3837, 1015 

CHAPTER  CLXXXVIII. 
Section  3853, 1015 


CHAPTER   CLXXXIX. 

Page_ 

Section  3856, lOlff 

CHAPTER  CXC. 

Sections  3879  to  3885, 1016 

Section  3886, 1018 

Sections  3887  to  3889 1019 

Sections  3892  and  3893 1020 

Section  3894, 1021 

Section  3895 1024 

Sections  3897  to  3900, 1027 

Sections  3901  to  3904, 1028 

Sections  3905  to  3908, 1029 

TITLE  LIII. 
CHAPTER  CXCI. 

Sections  3913  to  3916, 1030 

Section  3927, 1031 

CHAPTER  CXCII. 

Sections  3943  to  3945, 1031 

Section  3948, 1032 

CHAPTER  CXCni. 
Section  3951, 1032 

CHAPTER  CXCIV. 

Sections  3956  to  3960, 1032 

Section  3965, 1034 

Sections  3966  to  3970 1037 

CHAPTER  CXCV. 

Section  3977, 1037 

Sections  3979  to  3984, 1039 

CHAPTER  CXCVI. 

Section  3989, 1041 

Sections  3990  and  3991, 1042 

Section  3992, 1043 

Sections  3993  and  3994 1044 

Sections  3996  to  3999, 1045 

Section  4000, 1049 

Section  4001, 1051 

Section  4003 1053 

Sections  4009  to  4013, 1055 

Section  4014, 1056 

CHAPTER  CXCVII. 

Section  4016 1656 

Section  4017 1058 

Section  4018 1060 

Sections  401 9  to  4023, 1071 

Section  4024, 1072 

Section  4025, 1073 

Sections  4026  and  4027, 1073 

Sections  4028  to  4037, 1078 

Sections  4038  to  4040, 1079 

Sections  4041  to  4043, 1080 

Sections  4044  and  4045, 1081 

Sections  4046  and  4047, 1083 

CHAPTER  CXCVIII. 

Sections  4050  to  4052, 1085 

Sections  4053  to  4055, 10811 


INDEX. 


1105 


Pagk.  I 
Sections  4056  to 4071,  ......    .    .  10871 

Sections  4074  to  4076, 1088  j 

CHAPTER  CXCIX.  , 

Section  4081 1088  i 

Section  4087, 1089  ' 

CHAPTER  CC.  i 

Sections  4090  to  4093 1089  j 

Section  4097, 1090  i 

Sections  4099  to  4104, 1091  , 

TITLE  LIV. 
CHAPTER  CCI. 

Section  4106 1091 

Section  4107, 1092 


TITLE  LV. 

CHAPTERS  CCn.,  CCIII. 

Paok. 

Section  4174, 1093 

Section  4176, 1093 

CHAPTER  CCIV. 

Sections  4179  to  4181 1093 

Sections  4183  to  4187, 1094 

TITLE  LVI. 
CHAPTER  CCV. 

Section  4198, 1094 

Section  4199, 1095 

TITLE  LVII. 

CHAPTER  CCVI. 
Sections  4202  to  4304, 1095 


DEC 


LAW  LIBRARY 

UNIVERSITY  OF  CALIFORNIS 

LOS  ANGELES 


5  1951 


UC  SOUTHERN  REGIONAL  LIBRARY  FAOLITY 

iliil  II  liiil  III  II  li  II  III  II I  III  mill 


A     000  680  907     3 


it:i.--i,~r 


